Opinion

Alvarez v. Robertson

Court
District Court, N.D. California
Filed
Jul 13, 2022
Cited by
0 cases
Authority
More cited than 18.8%

noting that the Supreme Court has not 9 squarely addressed the discretionary exclusion of evidence and the right to present a complete 10 defense

How later courts described this case

  • noting that the Supreme Court has not 9 squarely addressed the discretionary exclusion of evidence and the right to present a complete 10 defense
  • one-sentence order denying habeas petition analyzed under 7 § 2254(d)
  • “[w]hether rooted directly in the Due 16 Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation 17 clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful 18 opportunity to present a complete defense”
  • reversing 3 conviction where multiple constitutional errors hindered defendant’s efforts to challenge every 4 || important element of proof offered by prosecution.

Written by the judges who cited it.

The opinion

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 ROBERT TOBIAS ALVAREZ, Case No. 21-cv-04626-HSG

8 Petitioner,

ORDER DENYING PETITION FOR

9 v. WRIT OF HABEAS CORPUS;

DENYING CERTIFICATE

10 JIM ROBERTSON, OFAPPEALABILITY

Respondent.

11

12

Before the Court is the petition for a writ of habeas corpus of Petitioner Robert Tobias

13

Alvarez, brought pursuant to 28 U.S.C. § 2254, challenging the validity of his state court

14

conviction. (Dkt. No. 1.) Respondent has filed an answer to the petition (Dkt. No. 11-1), and

15

Petitioner has filed a traverse (Dkt No. 13). For the reasons set forth below, the petition is

16

DENIED.

17

I. PROCEDURAL HISTORY

18

In 2017, a Santa Clara County jury convicted Petitioner of first degree murder (Cal. Pen.

19

Code § 187) and three counts of robbery (Cal. Pen. Code § 211). (Dkt No. 12-7 at 214-19.) The

20

jury also found true the murder special circumstance allegation (Cal. Pen. Code § 190.2(a)(17)),

21

and criminal street gang allegations on the murder count and one robbery count (Cal. Pen. Code

22

§§ 186.22(b), (b)(1)(c)). Id. The trial court found true prior strike convictions. (Id. at 221.) The

23

trial court sentenced Petitioner to an aggregate term of life without parole plus fifty-six years to

24

life in prison. (Id. at 261.)

25

Petitioner appealed his conviction to the California Court of Appeal. On April 23, 2020,

26

the California Court of Appeal affirmed. See People v. Alvarez, No. H045451, 2020 WL 1950872

27

(Cal. Ct. App. Apr. 23, 2020). On July 8, 2020, the California Supreme Court summarily denied

1 review. (Dkt. No. 12-40 at 83.)

2 On June 16, 2021, Petitioner filed a federal habeas petition that commenced the instant

3 action. (Dkt. No. 1.)

4 II. STATEMENT OF FACTS

5 The following factual background is taken from the April 23, 2020 opinion of the

6 California Court of Appeal.1

7 1. The Events of June 12 and 13, 2013

8 On the evening of June 12, 2013, sisters Cassandra Reyes and S.M.

and their respective boyfriends, defendant and Christopher M., drove

9 to a 7-Eleven in San Jose. At that time, Reyes was 24 years old, S.M.

was 16 years old, defendant was 21 years old, and Christopher was

10 17 years old. Reyes drove the group in her mother’s silver Cadillac.

11 Defendant and Christopher went into the 7-Eleven while the sisters

waited in the car. According to Reyes, defendant and Christopher

12 returned with chips, soda, cans of Four Loko [FN], and beer. Reyes

knew defendant did not have the money to pay for the items and he

13 confirmed to her that he “took” them. Defendant told Reyes to drive

to another 7-Eleven so they could get more beer. She complied.

14 Again, defendant and Christopher went inside while Reyes and S.M.

remained in the car. Again, defendant and Christopher returned with

15 beer and Four Loko and told Reyes to drive to another 7-Eleven.

Reyes testified that this pattern continued until they had gone to five

16 or six different 7-Elevens. S.M., who testified under a grant of

immunity, likewise testified that she, her sister, defendant, and

17 Christopher drove to multiple 7-Elevens; that at each store only

Christopher and defendant went inside; and that each time they

18 returned with Four Loko and beer.

19 Just before midnight, defendant and Christopher entered the 7-Eleven

owned by Edward N. According to the clerk on duty, R.P., one of the

20 men picked out some beer while the other stood near the door. When

R.P. asked the men to pay, the one near the door cursed at him,

21 displayed a 12-inch knife that was hanging by his belt, and threatened

to kill R.P. Edward, who was in the back of the store, heard shouting

22 and came to the front. He saw the men leave without paying for the

beer. Edward did not try to stop the men because, while he did not

23 see the knife, he nevertheless believed intervening could be dangerous

because there were two of them, they were cursing, and they might

24 have been armed. Outside, Edward saw the men get into a four-door

gray Cadillac; he wrote down the license plate number and called the

25

26

1 The Court has independently reviewed the record as required by AEDPA. Nasby v. Daniel, 853

F.3d 1049, 1052-54 (9th Cir. 2017). Based on the Court’s independent review, the Court finds

27

that it can reasonably conclude that the state court’s summary of the facts is supported by the

police. The license plate number Edward provided to police was

1 5FLD322. The license plate number on Reyes’s mother’s Cadillac

was 5FLB932. Surveillance video of the incident was played at trial.

2 It shows a male wearing a jersey with the number 18 on it holding a

knife and another male holding beer. S.M. testified that on the night

3 of the 7-Eleven robberies, Christopher was wearing a jersey with the

number 18 on it.

4

During the course of the night, defendant drank Four Loko and

5 Christopher drank beer. Both Reyes and S.M. testified that defendant

drank at least five cans of Four Loko and became extremely drunk.

6 [FN] At one point, defendant opened the door of the car while it was

moving at approximately 45 miles an hour and threatened to jump out

7 because he wanted to “rob somebody.” Later, defendant said he had

to go to the bathroom. Reyes pulled onto Checkers Street to let him

8 out of the vehicle. Christopher got out too.

9 A couple of minutes later, Reyes heard yelling. She drove down

Checkers towards the noise. She saw Christopher and defendant

10 assaulting a man who was lying in the street. Christopher was kicking

the man and defendant was swinging his arms at the man. When

11 defendant got back in the front passenger seat of the Cadillac, he was

holding a bloody knife. Christopher got in the backseat. Reyes

12 testified that he too was holding a knife with blood on it. S.M. denied

seeing anything in Christopher’s hands; she said that he started crying

13 when he reentered the car.

14 According to Reyes, during the car ride home, defendant said

“fucking scrap,” “you bitches better not say anything [or] I’ll hurt

15 you,” and “I came up.” S.M. likewise heard defendant threaten them

but denied hearing the phrase “came up.” While they were still in the

16 car, defendant showed Reyes a wallet, cell phone, car keys, and a

checkbook. Back at Reyes and S.M.’s house, defendant and

17 Christopher washed the knives, removed their clothes and put them in

black garbage bags, and attempted to burn the wallet, cell phone, car

18 keys, and checkbook in the backyard.

19 The following day, Joel M. came to the house. In Reyes’s presence,

defendant told Joel that he had stabbed somebody and that he needed

20 Joel to get rid of the knife and gloves. Reyes also saw defendant give

Joel the bag of clothes and a knife, which Joel wrapped in one of

21 Reyes’s T-shirts. Reyes then drove Joel to defendant’s residence

located at 70 South 21st Street in San Jose.

22

. . .

23

[2]. The Investigation

24

Police interviewed Joel on June 14, 2013. That evening, officers

25 searched defendant’s residence. In a fenced-in area along the

driveway, they found a trash bag containing a knife wrapped in a shirt.

26 The knife had a 10-inch blade, which was partially serrated. At trial,

Reyes identified the knife as belonging to defendant. On the deck of

27 defendant’s apartment, police found a trash bag containing a knife

white wicker basket.

1

On June 15, 2013, police searched the house where Reyes and S.M.

2 lived. They discovered burnt material in the backyard. In the ground

floor bedroom, they found a dresser with wicker drawers, one of

3 which was missing. The partially burned white wicker basket found

at defendant’s residence appeared to be the same size and shape as the

4 remaining wicker drawers in the dresser.

5 Police obtained defendant’s cell phone records, including his text

messages, pursuant to a search warrant. Those records showed that

6 defendant sent Joel the following three text messages on the afternoon

of June 13, 2013: “Fuck, some shit happened, and I need you right

7 now”; “K, fa sho, I need your assistance, bro”; and “Please don’t flake

on me, brother. I need your help. You my only hope at this time.”

8 Shortly after midnight on June 14, 2013, defendant texted Joel: “Good

lookin’ out bro. I appreciate your assistance.”

9

Police took defendant, Christopher, and Reyes into custody on June

10 15, 2013.

11 [3]. Forensic and DNA Evidence

12 The knife found at defendant’s residence had a string tied to the

handle. DNA testing identified the victim as a possible contributor to

13 DNA found on that string. The prosecution’s DNA expert testified

that the odds of obtaining the same DNA profile from a random

14 person in the United States was “1 in 12 billion in the African

American population, 1 in 28 billion in the Caucasian population, and

15 1 in 97 billion in the Hispanic population.” While G.O. was Asian,

the expert was unable to give a statistical probability for the Asian

16 population due to the lack of an Asian population database. But he

opined that the probability that a random individual would share the

17 same DNA profile was at least 1 in 2 billion.

18 A bloodstain on the Cadillac’s front passenger door handle contained

G.O.’s DNA. G.O.’s DNA also was found on the front passenger

19 seatbelt.

20 . . .

21 The cause of death was multiple blunt and sharp force injuries. Dr.

Jorden opined that the head trauma alone “probably” would have

22 rendered the victim “greatly incapacitated” and might have been fatal.

She further opined that the stab wounds alone would have been fatal

23 absent the head injury.

24 Dr. Jorden could not determine whether more than one knife inflicted

the sharp force injuries because a serrated blade can inflict a wound

25 without serrated margins. At trial, she was shown a picture of the

knife found []at defendant’s residence. She opined that it could have

26 inflicted some or all of the stab wounds.

27 Alvarez, 2020 WL 1950872, at *1–4.

1 III. DISCUSSION

2 A. Standard of Review

3 Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

4 federal court may entertain a petition for writ of habeas corpus “in behalf of a person in custody

5 pursuant to the judgment of a State court only on the ground that he is in custody in violation of

6 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petition may

7 not be granted with respect to any claim adjudicated on the merits in state court unless the state

8 court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an

9 unreasonable application of, clearly established Federal law, as determined by the Supreme Court

10 of the United States; or (2) resulted in a decision that was based on an unreasonable determination

11 of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

12 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court

13 arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a

14 question of law or if the state court decides a case differently than [the] Court has on a set of

15 materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

16 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state

17 court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably

18 applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal habeas court

19 may not issue the writ simply because that court concludes in its independent judgment that the

20 relevant state-court decision applied clearly established federal law erroneously or incorrectly.

21 Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court making

22 the “unreasonable application” inquiry should ask whether the state court’s application of clearly

23 established federal law was “objectively unreasonable.” Id. at 409.

24 The state court decision to which Section 2254(d) applies is the “last reasoned decision” of

25 the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991).2 In reviewing each claim,

26

2 Although Ylst was a procedural default case, the “look through” rule announced there has been

27

extended beyond the context of procedural default. Barker v. Fleming, 423 F.3d 1085, 1091 n.3

1 the court must examine the last reasoned state court decision that addressed the claim. Cannedy v.

2 Adams, 706 F.3d 1148, 1158 (9th Cir.), amended, 733 F.3d 794 (9th Cir. 2013).

3 When a federal claim has been presented to a state court and the state court has summarily

4 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the

5 absence of any indication or state-law procedural principles to the contrary. Harrington v.

6 Richter, 562 U.S. 86, 98 (2011) (one-sentence order denying habeas petition analyzed under

7 § 2254(d)). Accordingly, in reviewing the habeas claims not addressed by the state appellate

8 court, this Court follows the Supreme Court’s direction and “determine[s] what arguments or

9 theories . . . could have supported” the California Supreme Court’s rejection of the federal claim,

10 and then gives deference to those arguments or theories under AEDPA. Id. at 102.

11 B. Petitioner’s Claims

12 Petitioner raises the following eight claims for relief: (1) the trial court erred when it

13 refused to allow into evidence co-defendant Christopher’s admission to police that he had

14 committed substantial portions of the charged crimes; (2) the trial court erred when it refused to

15 allow cross-examination of S.M. regarding co-defendant Christopher’s admission of guilt; (3) the

16 prosecutor committed misconduct when he argued that Petitioner stabbed the victim; (4)

17 insufficient evidence to support the conviction for robbery of Edward Ng; (5) insufficient evidence

18 to support gang enhancements on the murder and robbery counts; (6) special circumstance

19 conviction should be reversed; (7) Petitioner’s sentence constituted cruel and unusual punishment

20 within the meaning of the Eighth Amendment; and (8) cumulative error.

21 1. Claim No. 1: Admission of Evidence

22 In Claim No. 1, Petitioner contends that the trial court erred when it excluded excerpts

23 from co-defendant Christopher’s statement to the police under the state hearsay exception for

24 declarations against interest. The Supreme Court of California summarily denied this claim. The

25 California Court of Appeal laid out the relevant background and rejected this claim as follows:

26 a. Christopher’s Statement to Police

27 Police interviewed Christopher on June 15, 2013. His version of

robberies and the killing. Next, he admitted that he, S.M., Reyes, and

1 defendant went out that night and that “a guy died.” He explained

that they “got beer” and were drinking and driving around until

2 defendant said to stop the car. Christopher said that he and defendant

got out of the car and that defendant stabbed a man. Christopher

3 denied any involvement in the attack and denied that defendant kicked

the victim. He said that defendant took the victim’s wallet and phone

4 and later burned them.

5 Police shifted gears, asking about how the group had obtained beer.

Christopher claimed he stayed in the car while defendant went into a

6 7-Eleven. Later, Christopher admitted that he and defendant took

beer from two 7-Elevens without paying. Eventually, Christopher

7 acknowledged that they took beer from numerous 7-Elevens.

8 Upon further questioning about the stabbing, Christopher said that he

and defendant got out of the car to go to the bathroom and the victim

9 “was right there.” Defendant approached the victim and asked for

money, the victim ran, and defendant chased and stabbed him.

10 Christopher maintained that he did not touch the victim. The

detective told Christopher that “the house across the street had a

11 camera” and that the video “shows more than [defendant stabbing the

victim]. It wasn’t just [the defendant].” [FN] Christopher responded

12 by asking “What did I do?” Eventually, Christopher admitted that he

had a knife but said that he did not stab the victim. Christopher said

13 that he was the one who asked the victim, “What you got in your

pockets?” He reiterated that the victim ran and defendant chased,

14 stabbed, and robbed him. Christopher continued to deny that he hit

or stabbed the victim. The detective again referenced the supposed

15 video, saying “So you’re telling me the video lied? The video was

wrong?” After more back and forth, Christopher said that he hit the

16 victim twice with his fist, but did not stab him.

17 [FN] This apparently was a ruse; we are aware of no

video of the stabbing.

18

In his next description of the incident, Christopher said that he swung

19 his knife at the victim once but missed. Subsequently, he said that he

stabbed the victim “[p]robably like two times,” but denied that there

20 was any blood on the knife when he got back in the car. Christopher

then said that defendant stabbed his whole knife into the victim.

21 Christopher told the detective that he felt like he had to stab the victim

because defendant, who was drunk and had a knife, looked at him and

22 asked “ain’t you gonna do nothing?” Christopher told the detective

that there were two knives, both of which belonged to defendant.

23

Next, the detective told Christopher that “[s]omebody hit [the victim]

24 over the head with something.” Christopher denied knowing anything

about that or seeing defendant hit the victim over the head. The

25 detective then told Christopher that “[s]omebody was kicking him in

the head” and asked who it was. Christopher responded that

26 defendant kicked the victim in the head after stabbing and robbing

him.

27

someone’s front yard. When they were done, they saw the victim and

1 defendant suggested that they rob him. They ran up to the victim.

Christopher said something and the victim tried to run away.

2 Defendant and Christopher chased him and “we stabbed him.”

Defendant continued to stab the victim until Christopher told him to

3 “chill.” Defendant then searched the victim’s pockets. Christopher

started to walk away. He looked back and saw defendant kicking the

4 victim in the head “like ... [he] wanted to kill the guy.”

5 b. Motion to Introduce Excerpts of Christopher’s Statement to

Police

6

Defendant sought to advance a defense that Christopher alone stabbed

7 and killed G.O. [the victim]. In support of that defense, he moved

under Evidence Code section 1230 to admit 19 excerpts of

8 Christopher’s statement to police in which Christopher incriminated

himself. Defendant maintained that the remainder of the statement,

9 in which Christopher incriminated defendant, was inadmissible. The

prosecutor argued that Christopher’s statements did not qualify for

10 admission under Evidence Code section 1230. The trial court agreed,

characterizing the statement as a whole as “saying, ‘I did it, but

11 [defendant] is guiltier than I am.’ ” The court excluded the evidence.

12 c. The Trial Court Did Not Abuse its Discretion

13 It is undisputed that Christopher was unavailable as a witness, as

required by Evidence Code section 1230, having exercised his Fifth

14 Amendment right not to incriminate himself. At issue is whether

Christopher’s statements to police were against his penal interest at

15 the time they were made.

16 Defendant argues that the excerpts he sought to admit were “totally

against [Christopher’s] interest. They said nothing about

17 [defendant].” That argument ignores our Supreme Court’s guidance

that “context matters in determining whether a statement or portion

18 thereof is admissible under the against-interest exception.” (Grimes,

supra, 1 Cal.5th at p. 717.) Indeed, “a hearsay statement that is

19 facially inculpatory of the declarant may, when considered in context,

also be exculpatory or have a net exculpatory effect.” (People v.

20 Duarte (2000) 24 Cal.4th 603, 612 (Duarte).) For example, context

may reveal a facially inculpatory statement to be an attempt to “ ‘shift

21 blame or curry favor’ ” with the authorities. (Ibid.)

22 The trial court did not abuse its discretion by concluding that, in

context, Christopher’s statements were not “truly self-inculpatory,

23 [but] rather ... attempts to shift blame or curry favor” with police.

(Williamson v. United States (1994) 512 U.S. 594, 603.) Christopher

24 incriminated himself only after the detective employed a ruse

designed to make him believe that police already had sufficient

25 evidence to link him to the murder and robbery of G.O. And, as

defendant himself acknowledges in his opening brief, even after

26 admitting culpability, “[Christopher] continued to claim that

[defendant] was mostly responsible.” Christopher “may have

27 believed ... he had little to lose and perhaps something to gain by

Cal.4th at p. 617; see Advisory Committee Notes to Fed. Rules Evid.,

1 rule 8045 [“a statement admitting guilt and implicating another

person, made while in custody, may well be motivated by a desire to

2 curry favor with the authorities and hence fail to qualify as against

interest”].)

3

On reply, defendant offers a new interpretation of Christopher’s

4 statement. He says that, by the end of the interview, Christopher

“effectively recanted all his earlier accusations that [defendant] did

5 any stabbing” and “effectively admitted that he[, Christopher,] was

the one holding the knife.” We disagree with that characterization of

6 Christopher’s police statement. In Christopher’s final version of

events, it was defendant’s idea to rob the victim; they both chased and

7 stabbed the victim; defendant continued to stab the victim after

Christopher stopped and until Christopher told him to “chill”;

8 defendant went through the victim’s pockets; and defendant kicked

the victim in the head.

9

Alvarez, 2020 WL 1950872, at *7-9.

10

The state court’s rejection of this claim was neither contrary to nor an unreasonable

11

application of Supreme Court precedent or based on an unreasonable determination of the facts.

12

“[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules

13

excluding evidence from criminal trials.” United States v. Scheffer, 523 U.S. 303, 308 (1998). In

14

limited circumstances, however, the exclusion of crucial evidence may violate the Constitution.

15

See Holmes v. South Carolina, 547 U.S. 319, 319 (2006) (“[w]hether rooted directly in the Due

16

Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation

17

clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful

18

opportunity to present a complete defense”) (citations and internal quotations omitted); Chia v.

19

Cambra, 360 F.3d 997, 1003 (9th Cir. 2004) (“The Supreme Court has made it clear that the

20

erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth

21

Amendment due process right to a fair trial and the Sixth Amendment right to present a defense.”)

22

(citations and internal quotations omitted). Nevertheless,

23

[w]hile the Constitution [ ] prohibits the exclusion of defense

24 evidence under rules that serve no legitimate purpose or that are

disproportionate to the ends that they are asserted to promote, well-

25 established rules of evidence permit trial judges to exclude evidence

if its probative value is outweighed by certain other factors such as

26 unfair prejudice, confusion of the issues, or potential to mislead the

jury.

27

Holmes, 547 U.S. at 326.

1 As indicated by the state appellate court, the trial court excluded Christopher’s statement

2 pursuant to the court’s discretion under California Evidence Code 1230, which recognizes a

3 hearsay exception for a declaration against penal interest. See People v. Gordon, 50 Cal.3d 1223,

4 1251 (1990) (holding that hearsay exception for declaration against interest “requires the court to

5 apply [] the peculiar facts of the individual case . . .[which] demands, the exercise of discretion”)

6 (overruled on other grounds). There is no Supreme Court precedent establishing a right to federal

7 habeas relief based on the exclusion of evidence pursuant to discretionary state evidentiary rules.

8 See Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (noting that the Supreme Court has not

9 squarely addressed the discretionary exclusion of evidence and the right to present a complete

10 defense).

11 Further, the state court’s determination that Christopher’s statement to the police did not

12 fall within the hearsay exception was not unreasonable. Petitioner wished to introduce

13 Christopher’s statements to support the defense theory that Christopher alone killed the victim.

14 However, in Christopher’s statement to the detectives he repeatedly implicated Petitioner in the

15 crime and denied his own involvement. For much of the statement, Christopher emphasized that

16 Petitioner alone chased and stabbed the victim and that he merely observed the stabbing. (Dkt.

17 No. 12-8 at 138, 158, 164-65, 174-83.) Even after Christopher admitted that he “probably”

18 stabbed the victim, he explained that he was pressured by Petitioner and emphasized that

19 Petitioner was primarily responsible. (Id. at 200-01, 218-19.) Given Christopher’s many

20 inconsistent and shifting statements, the trial court was not unreasonable in concluding that

21 Christopher’s statement was not against his penal interest. Because the state court’s decision

22 rejecting this claim does not amount to an unreasonable application of Supreme Court precedent or

23 an unreasonable determination of the facts, Claim No. 1 is denied.

24 2. Limit on Cross-Examination

25 In Claim No. 2, Petitioner argues that the trial court erred when it excluded an excerpt from

26 a recorded conversation between Christopher and S.M. During cross-examination of S.M.,

27 defense counsel sought to elicit testimony regarding a conversation Christopher had with S.M. at

1 counsel explained: “what I wanted to do was bring in the full context of the statement, which is

2 that she [S.M.] said to Christopher, ‘I told them that you didn’t do it and you say you did.’ And he

3 says, ‘Yeah.’ And she says, ‘Fucking loser.’” (Id. at 192.) The state objected to the conversation

4 being admitted on grounds that it was both hearsay and ambiguous:

5 [A]lso . . . in terms of when [S.M.] and [] Christopher[] had that

conversation, the Court has looked at the entire interview. They had

6 that conversation before [Christopher] ever admitted to knifing

someone. So, in other words, that—whatever he was saying was very

7 ambiguous and up until that point, he never admitted his involvement.

So even hypothetically if that statement were to come in, it’s

8 misleading to the jury because up to that point, he had not told officers

he had a knife.

9

(Id. at 193-94.)

10

The trial court excluded the statement, explaining:

11

Agreed. And the Court has no knowledge and clearly the jury has no

12 knowledge of whatever it was that she thinks she told the police. And

what we’ve certainly learned from her testimony is that [S.M.]

13 summarizes things that then need to be explored in great detail by

each of you. So I don’t know really what she was saying to Mr.

14 Christopher[.]

15 (Id. at 194.)

16 The Supreme Court of California summarily denied Petitioner’s claim that the trial court

17 erred in excluding S.M. and Christopher’s statement. The California Court of Appeal rejected this

18 claim as follows:

19 At the same time police interviewed Christopher, they also separately

interviewed S.M. In the middle of Christopher’s interview, police

20 allowed Christopher and S.M. to talk alone in an interview room.

Prior to speaking with S.M., Christopher had admitted to stealing beer

21 from two 7-Elevens but had not made any inculpatory statements

about the stabbing and robbery of G.O. The conversation between

22 Christopher and S.M. was recorded. During that conversation, S.M.

said to Christopher: “I told them that you didn’t do it and you said

23 you did.” Christopher responded, “yeah.” The remainder of their

conversation is not in the record. [FN]

24

[FN] The parties do not direct us to any transcript of

25 the recorded conversation in the record and we have

not found one. We rely on defense counsel’s in-court

26 recitation of the relevant statements, as do the parties

on appeal. Defense counsel described the statements

27 outside the presence of the jury while memorializing

side bar.

1

Defense counsel sought to introduce S.M.’s statement and

2 Christopher’s response under Evidence Code section 1230. The trial

court excluded those statements. Defendant says that was error

3 because Christopher’s statement that “yeah” he “did it” was a

declaration against penal interest.

4

The trial court did not abuse its discretion in concluding otherwise.

5 As noted, “ ‘[w]hether a statement is self-inculpatory or not can only

be determined by viewing the statement in context.’ ” (Grimes, supra,

6 1 Cal.5th at p. 716.) Here, we do not have the requisite context. The

statement itself—apparently confirming that Christopher told police

7 he did “it”—is vague. The entirety of the conversation, which might

elucidate the meaning of “it,” is not in the record. Given the facts of

8 the case, “it” could refer to any number of criminal or noncriminal

acts. In short, the trial court did not abuse its discretion in concluding

9 that defendant failed to carry his burden of showing that the

declaration was against Christopher’s penal interest.

10

Alvarez, 2020 WL 1950872, at *9.

11

The state court’s determination that the conversation between S.M. and Christopher did not

12

fall within the hearsay exception was not unreasonable. First, as previously explained, there is no

13

Supreme Court case which provides habeas relief based on the exclusion of evidence pursuant to

14

discretionary state evidentiary rules. See Horell, 644 F.3d at 983. Second, while a state court may

15

not exclude evidence “under rules that serve no legitimate purpose,” trial judges may “exclude

16

evidence if its probative value is outweighed by certain other factors such as unfair prejudice,

17

confusion of the issues, or potential to mislead the jury.” Holmes, 547 U.S. at 326. Here, the

18

record is clear that presenting the jury with the limited statements from S.M.’s conversation with

19

Christopher consisting of “I told them that you didn’t do it and you say you did” and “Yeah,” had

20

the potential to mislead the jury. As noted by the state court, those statements were made in the

21

middle of Christopher’s lengthy confession to the detectives. Because it is not clear which, if any,

22

crimes the statements refer to, the state court was not unreasonable in concluding that Petitioner

23

failed to show they were against Christopher’s penal interest. The state court’s decision rejecting

24

this claim was not an unreasonable application of Supreme Court precedent or an unreasonable

25

determination of the facts. Petitioner is denied relief on Claim No. 2.

26

3. Prosecutorial Misconduct

27

In Claim No. 3, Petitioner argues that the prosecutor committed misconduct at summation

1 by arguing that Petitioner alone stabbed the victim “which the prosecutor knew was factually

2 incorrect.” (Dkt. No. 1 at 31.) The Supreme Court of California summarily denied this claim.

3 The California Court of Appeal rejected this claim as follows:

4 Defendant contends the prosecutor committed misconduct in his

closing argument by knowingly arguing a false inference—namely,

5 that only defendant, and not Christopher, stabbed G.O. Defendant

says Christopher’s excluded police statement, of which the prosecutor

6 was aware, shows that inference to be false. Defendant concedes he

did not object below and says that if that failure to object forfeited the

7 claim, then trial counsel was ineffective in failing to object. We

conclude that defendant suffered no prejudice, which defeats his

8 claim regardless of the outcome of the forfeiture analysis.

9 1. Factual Background

10 In closing, the prosecutor argued: “What happens next is that the

assault occurs, the victim goes down to the ground. Christopher ... is

11 kicking the victim. The defendant is punching the victim, which we

now know is stabbing the victim.” Defense counsel did not object.

12 Elsewhere in his closing argument, the prosecutor twice argued that

jurors could conclude that defendant stabbed the victim “three times

13 or six times,” based on the medical examiner’s testimony that there

were six knife wounds, three of which were serrated.

14

2. Legal Standards

15

a. Prosecutorial Misconduct

16

“ ‘The applicable federal and state standards regarding prosecutorial

17 misconduct are well established.’ ” (People v. Hill (1998) 17 Cal.4th

800, 819.) “ ‘A prosecutor’s conduct violates the Fourteenth

18 Amendment to the federal Constitution when it infects the trial with

such unfairness as to make the conviction a denial of due process.

19 Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only

20 if it involves the use of deceptive or reprehensible methods to attempt

to persuade either the trial court or the jury.’ ” (People v. Gonzales

21 and Soliz (2011) 52 Cal.4th 254, 305.)

22 “[T]he prosecution has broad discretion to state its views regarding

which reasonable inferences may or may not be drawn from the

23 evidence.” (People v. Cunningham (2001) 25 Cal.4th 926, 1026.)

“The prosecutor, however, may not mislead the jury,” including by

24 asking “the jurors to draw an inference that they might not have drawn

if they had heard ... evidence the judge had excluded.” (People v.

25 Daggett (1990) 225 Cal.App.3d 751, 757-758; see United States v.

Reyes (9th Cir. 2011) 660 F.3d 454, 462 [“ ‘it is decidedly improper

26 for the government to propound inferences that it knows to be false,

or has very strong reason to doubt ....’ ”].)

27

Monterroso (2004) 34 Cal.4th 743, 785.)

1

Prosecutorial “[m]isconduct that does not constitute a federal

2 constitutional violation warrants reversal only if it is reasonably

probable the trial outcome was affected.” (People v. Shazier (2014)

3 60 Cal.4th 109, 127 [applying the standard for prejudice set forth in

People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) ].)

4

b. Ineffective Assistance of Counsel

5

“Under both the Sixth Amendment to the United States Constitution

6 and article I, section 15, of the California Constitution, a criminal

defendant has the right to the assistance of counsel.” (People v.

7 Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of

ineffective assistance of counsel, a criminal defendant must establish

8 both that his counsel’s performance was deficient and that he suffered

prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687

9 (Strickland).) The deficient performance component of an ineffective

assistance of counsel claim requires a showing that “counsel’s

10 representation fell below an objective standard of reasonableness”

“under prevailing professional norms.” (Id. at p. 688.) With respect

11 to prejudice, a defendant must show “there is a reasonable

probability”—meaning “a probability sufficient to undermine

12 confidence in the outcome”—“that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” (Id.

13 at p. 694.) We “need not determine whether counsel’s performance

was deficient before examining the prejudice suffered by the

14 defendant as a result of the alleged deficiencies.... If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient

15 prejudice, ... that course should be followed.” (Id. at p. 697.)

16 3. Analysis

17 Taken as a whole, the prosecutor’s closing argument invited jurors to

infer that defendant inflicted some or all of the victim’s stab wounds.

18 We are not convinced that the prosecutor knew an inference that

defendant was the sole stabber to be false. While it is true that

19 Christopher admitted to “probably” stabbing the victim twice, the

veracity of that admission could reasonably be doubted. But we need

20 not decide whether the prosecutor committed misconduct because

even if he did, defendant suffered no prejudice. The jury found not

21 true the allegation that defendant used a knife in the commission of

the crimes against G.O. From that finding, we can deduce that jurors

22 either concluded that Christopher was the sole stabber or were unable

to unanimously agree as to whether defendant inflicted any of the stab

23 wounds. In any event, the jury did not infer that defendant was the

sole stabber. That is, to the extent the prosecutor encouraged jurors

24 to make a potentially incorrect inference, they did not do so. In these

circumstances, it is not reasonably probable that a result more

25 favorable to the defendant would have been reached absent any

suggestion by the prosecutor that defendant was the sole stabber.

26 (Watson, supra, 46 Cal.2d at p. 836.) Accordingly, if the

prosecutorial misconduct claim was preserved, any misconduct does

27 not merit reversal. And, if it was not, the ineffective assistance of

“substantially the same as the prejudice prong of Strickland”].)

1

Alvarez, 2020 WL 1950872, at *9-11.

2

A defendant’s due process rights are violated when a prosecutor’s misconduct renders a

3

trial “fundamentally unfair.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). A prosecutorial

4

misconduct claim is decided “‘on the merits, examining the entire proceedings to determine

5

whether the prosecutor’s remarks so infected the trial with unfairness as to make the resulting

6

conviction a denial of due process.’” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995). In

7

determining whether improper prosecutorial statements rise to the level of a due process violation,

8

the factors to consider are:

9

the weight of the evidence, the prominence of the comment in the

10 context of the entire trial, whether the prosecution misstated the

evidence, whether the judge instructed the jury to disregard the

11 comment, whether the comment was invited by defense counsel in its

summation and whether defense counsel had an adequate opportunity

12 to rebut the comment[.]

13 Hein v. Sullivan, 601 F.3d 897, 914 (9th Cir. 2010) (referencing Darden, 477 U.S. 168 (1986)).

14 “In essence, what Darden requires reviewing courts to consider appears to be equivalent to

15 evaluating whether there was a ‘reasonable probability’ of a different result.” Id. at 914-15.

16 Under federal law, “a prosecutor may not express his opinion of the defendant’s guilt” but,

17 on the other hand, “the prosecution must have reasonable latitude to fashion closing arguments.”

18 United States v. Moreland, 622 F.3d 1147, 1161 (9th Cir. 2010). Therefore, it is within the

19 bounds of fair advocacy for a prosecutor to ask the jury to draw inferences from the evidence that

20 the prosecutor believes in good faith might be true. See United States v. Blueford, 312 F.3d 968,

21 968 (9th Cir. 2002).

22 Petitioner fails to prove there is a reasonable probability that the prosecutor’s statement

23 rendered the trial fundamentally unfair. See Ford v. Peery, 999 F.3d 1214, 1225 (9th Cir. 2021).

24 First, as the state court noted, the jury found the knife enhancement on the murder count not true.

25 (Dkt. No. 12-7 at 214.) Thus, to the extent the prosecutor urged the jury to make an arguably

26 improper inference, i.e., that Petitioner alone stabbed the victim, the jury rejected that inference.

27 Second, because the evidence against Petitioner was strong, consisting of the testimony of

1 would have been different absent the prosecutor’s statements about the knife on summation. For

2 these reasons, habeas relief is denied on Claim No. 3.

3 4. Sufficiency of the Evidence: Robbery

4 In Claim No. 4, Petitioner argues that there was insufficient evidence to support the

5 conviction for robbery of 7-11 manager Edward NG, because the evidence at trial did not show

6 that force or fear was used in the commission of the crime. (Dkt. No. 1 at 33.) The Supreme

7 Court of California summarily denied this claim. The California Court of Appeal rejected this

8 claim as follows:

9 1. Standard of Review

10 “[W]e review the whole record in the light most favorable to the

judgment below to determine whether it discloses substantial

11 evidence—that is, evidence which is reasonable, credible, and of solid

value—such that a reasonable trier of fact could find the defendant

12 guilty beyond a reasonable doubt.” (People v. Cortes (1999) 71

Cal.App.4th 62, 71.) “In making this determination, we do not

13 reweigh the evidence, resolve conflicts in the evidence, or reevaluate

the credibility of witnesses.” (Ibid.)

14

2. Count 4

15

Defendant says there was insufficient evidence to support his

16 conviction for robbing Edward, the 7-Eleven owner, because Edward

did not see the knife during the robbery and there was no other

17 evidence of the use of force or fear.

18 a. Legal Principles

19 “Robbery is the felonious taking of personal property in the

possession of another, from his person or immediate presence, and

20 against his will, accomplished by means of force or fear.” (§ 211.)

“The crime is essentially a theft with two aggravating factors, that is,

21 a taking (1) from victim’s person or immediate presence, and (2)

accomplished by the use of force or fear.” (Miller v. Superior Court

22 (2004) 115 Cal.App.4th 216, 221.)

23 “The fear mentioned in Section 211 may be either: [¶] 1. The fear of

an unlawful injury to the person or property of the person robbed, or

24 of any relative of his or member of his family; or, [¶] 2. The fear of

an immediate and unlawful injury to the person or property of anyone

25 in the company of the person robbed at the time of the robbery.” (§

212.) “ ‘To establish a robbery was committed by means of fear, the

26 prosecution “must present evidence ‘... that the victim was in fact

afraid, and that such fear allowed the crime to be accomplished.’ ” ’

27 [Citation.] Thus, the fear element is subjective in nature. [Citation.]

that the victim was in fact afraid of injury. [Citation.] ‘The fear is

1 sufficient if it facilitated the defendant’s taking of the property. Thus,

any intimidation, even without threats, may be sufficient. [Citations.]’

2 ” (People v. Montalvo (2019) 36 Cal.App.5th 597, 612.) “All that is

necessary is that the record show ‘ “ ‘conduct, words, or

3 circumstances reasonably calculated to produce fear....’ ” ’

[Citation.]” (People v. Morehead (2011) 191 Cal.App.4th 765, 775.)

4

b. Analysis

5

Edward testified that he did not try to stop defendant and Christopher

6 from leaving with the stolen beer because it was dangerous given that

there were two of them, they were cursing, and they might have been

7 armed. Reasonable jurors could have inferred from Edward’s

testimony that he viewed defendant and Christopher’s verbal

8 aggression as carrying an implicit threat of harm if he resisted. Such

jurors further could have inferred that Edward was afraid of being

9 injured and that he did not try to regain the beer because of that fear.

Thus, there was sufficient evidence that defendant and Christopher’s

10 conduct (e.g., cursing and working as a team) was reasonably

calculated to produce fear, that Edward was afraid, and that such fear

11 allowed the crime to be accomplished.

12 Alvarez, 2020 WL 1950872, at *12.

13 Evidence is constitutionally sufficient to support a conviction when, upon “viewing the

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

15 the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

16 307, 319 (1979) (emphasis excluded). The reviewing court must presume the trier of fact resolved

17 any conflicts in the evidence in favor of the prosecution and must defer to that resolution. Id. at

18 326. State law provides “for ‘the substantive elements of the criminal offense,’ but the minimum

19 amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of

20 federal law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (quoting Jackson, 443 U.S. at 319).

21 The only question is “whether the finding was so insupportable as to fall below the threshold of

22 bare rationality.” Id. at 656. The jury, not the court, decides what conclusions should be drawn

23 from evidence admitted at trial. Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). The jury’s

24 credibility determinations are, therefore, entitled to near-total deference. Bruce v. Terhune, 376

25 F.3d 950, 957 (9th Cir. 2004).

26 As noted by the state court, under California law, robbery is the taking of property

27 accomplished by force or fear. Cal. Pen. Code § 211. The taking of property “includes forcing or

1 the theft or attempting to immediately reclaim the property.” People v. Flynn, 77 Cal. App. 4th

2 766, 771 (2000) (citation omitted). The “requisite fear need not be the result of an express threat .

3 . . . The use of force or fear to escape or otherwise retain even temporary possession of the

4 property constitutes robbery.” Id. at 771-72.

5 The state court’s determination that a rational jury could find the element of force or fear

6 was met as to the robbery of Ng’s 7-Eleven was not unreasonable. The cashier testified that after

7 asking Petitioner and Christopher to pay for the beer, he was called a “mother F-word” and one of

8 the men threatened to kill the cashier and took out a knife. (Dkt. No. 12-23 at 34-35.) Ng, the

9 store owner, testified that after he heard shouting and cursing, he came out from the back of the

10 store and saw two men shouting and cursing at his clerk. (Dkt. No. 12-21 at 147-48.) Ng testified

11 that one of the men had a knife and the other was holding the beer. (Id. at 148.) He explained that

12 he did not try to stop them from leaving because it is “dangerous . . . [u]sually people that don’t

13 pay for the beer will not really pay for it no matter, and I saw the weapons” and because “there

14 were two of them.” (Id. at 151.) Based on this testimony, there was evidence showing that Ng

15 feared stopping Petitioner and Christopher from taking the beer. Petitioner and Christopher were

16 shouting and cursing and at least one of the men had a knife. Viewing the evidence in the light

17 most favorable to the prosecution, it was not unreasonable for the state appellate court to conclude

18 that there was sufficient evidence to support the robbery conviction of Ng beyond a reasonable

19 doubt. See, e.g., People v. Morehead, 191 Cal. App. 4th 765, 775 (2011) (explaining that

20 intimidation is sufficient to satisfy the element of “fear”); Flynn, 77 Cal. App. 4th at 771 (“rather

21 polite . . . tap of cashier sufficient where it caused cashier to fear defendant might be armed”)

22 (citation omitted).

23 5. Sufficiency of the Evidence: Gang Enhancement

24 In Claim No. 5, Petitioner contends that there was insufficient evidence to support the gang

25 enhancements on the murder and robbery convictions. (Dkt. No. 1 at 36.) Specifically, he argues

26 that because the “predicate acts” evidence of the gang enhancements was proven with his juvenile

27 adjudications, which are not found by a jury, that evidence violated Apprendi v. New Jersey, 530

1 California Court of Appeal rejected this claim as follows:

2 Jurors found true the allegations that defendant carried out the murder

and robbery of G.O. for the benefit of, at the direction of, or in

3 association with a criminal street gang, with the specific intent to

promote, further, or assist in any criminal conduct by gang members

4 (§ 186.22, subd. (b)(5)). Defendant challenges those true findings as

unsupported by sufficient evidence.

5

. . .

6

The section 186.22, subdivision (b) gang sentence enhancement

7 applies where the prosecution proves two things: (1) the underlying

crime was “committed for the benefit of, at the direction of, or in

8 association with any criminal street gang” and (2) the underlying

crime was committed “with the specific intent to promote, further, or

9 assist in any criminal conduct by gang members ....” (§ 186.22, subd.

(b).) We shall refer to the first prong as “the gang-related prong” and

10 the second prong as “the specific intent prong.” (People v. Rios

(2013) 222 Cal.App.4th 542, 564.) Defendant contends there was

11 insufficient evidence as to the gang-related prong.

12 Section 186.22 defines a “criminal street gang” as “any ongoing

organization, association, or group of three or more persons, whether

13 formal or informal, having as one of its primary activities the

commission” of one or more enumerated offenses, “having a common

14 name or common identifying sign or symbol, and whose members

individually or collectively engage in or have engaged in a pattern of

15 criminal gang activity.” (§ 186.22, subd. (f).) Section 186.22 defines

the phrase “pattern of criminal gang activity” to mean “the

16 commission of, attempted commission of, conspiracy to commit, or

solicitation of, sustained juvenile petition for, or conviction of two or

17 more” predicate offenses by two or more persons on separate

occasions within certain time periods. (§ 186.22, subd. (e).)

18 Defendant maintains there was insufficient evidence of the existence

of a criminal street gang because all the predicate offenses were

19 committed by juveniles, which he maintains violates his Sixth

Amendment right to a jury’s determination of every fact necessary to

20 his guilt, citing Apprendi v. New Jersey (2000) 530 U.S. 466

(Apprendi).

21

. . .

22

23 Section 186.22, subdivision (e) expressly provides that “sustained

juvenile petition[s]” constitute evidence of predicate offenses for

24 purposes of establishing the requisite pattern of criminal gang

activity. The prosecutor introduced the following evidence to

25 establish a pattern of criminal gang activity: (1) Christopher’s

juvenile adjudication for assault by means likely to produce great

26 bodily injury (§ 245, subd. (a)(4)); (2) defendant’s juvenile

adjudication for assault on a peace officer by means likely to produce

27 great bodily injury (§ 245, subd. (c)); (3) defendant’s juvenile

1 Defendant contends that the use of juvenile adjudications as predicate

offenses violates Apprendi. There, the United States Supreme Court

2 held that, “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory

3 maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) Defendant

4 maintains that a juvenile adjudication is not a “prior conviction,” for

Apprendi purposes, because there is no right to a jury trial in juvenile

5 court proceedings.

6 As defendant acknowledges, our Supreme Court has held that

“Apprendi does not bar the use of a constitutionally valid, fair, and

7 reliable prior adjudication of criminal conduct to enhance a

subsequent adult sentence simply because the prior proceeding did

8 not include the right to a jury trial.” (People v. Nguyen (2009) 46

Cal.4th 1007, 1025 [considering the use of juvenile adjudications as

9 strikes under the Three Strikes law].) A majority of the federal

circuits likewise has concluded that Apprendi does not bar the use of

10 a juvenile adjudication to enhance a sentence, reasoning that juvenile

adjudications provide sufficient procedural safeguards to ensure the

11 reliability that Apprendi requires. (See United States v. Jones (3d Cir.

2003) 332 F.3d 688, 696; United States v. Wright (4th Cir. 2010) 594

12 F.3d 259, 264; United States v. Crowell (6th Cir. 2007) 493 F. 3d 744,

750; Welch v. United States (7th Cir. 2010) 604 F.3d 408, 426; United

13 States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1033; United States

v. Burge (11th Cir. 2005) 407 F.3d 1183, 1191.) The Ninth Circuit

14 alone has concluded that “Apprendi’s narrow ‘prior conviction’

exception is limited to prior convictions resulting from proceedings

15 that afforded the procedural necessities of a jury trial and proof

beyond a reasonable doubt,” such that it “does not include nonjury

16 juvenile adjudications.” (United States v. Tighe (9th Cir. 2001) 266

F.3d 1187, 1194-1195, fn. omitted.) Nguyen, which is binding on this

17 court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,

455), compels us to reject defendant’s contention that Apprendi bars

18 the use of juvenile adjudications as predicate offenses for purposes of

proving the gang enhancements.

19

Alvarez, 2020 WL 1950872, at *13-15.

20

As noted by the state appellate court, the Ninth Circuit held in United States v. Tighe, 266

21

F.3d 1187 (9th Cir. 2001), that the use of a non-jury juvenile adjudication to increase a criminal

22

penalty beyond the statutory maximum violates Apprendi. See Tighe, 266 F.3d at 1194-95.

23

However, the Ninth Circuit has since rejected the idea that Tighe is clearly established federal law

24

under 28 U.S.C. § 2254(d):

25

We have already determined that our holding in Tighe is not clearly

26 established Federal law for AEDPA purposes. See Boyd v. Newland,

467 F.3d 1139, 1152 (9th Cir.2006). Boyd noted that Tighe had been

27 rejected not only by the California courts, but also by the Third,

of explicit direction from the Supreme Court, we cannot hold that the

1 California courts’ use of Petitioner’s juvenile adjudication as a

sentencing enhancement was contrary to, or involved an unreasonable

2 application of,” clearly established Supreme Court precedent. Id.

3

John-Charles v. California, 646 F.3d 1243, 1252-53 (9th Cir. 2011). Given the lack of United

4

States Supreme Court authority on point, the state court’s determination that there was sufficient

5

evidence to prove the gang enhancement with Petitioner’s juvenile adjudications was not contrary

6

to or an unreasonable application of clearly established Supreme Court precedent. Habeas relief is

7

denied on Claim No. 5.

8

6. Constitutionality of Special Circumstance Felony Murder

9

In Claim No. 6, Petitioner argues that the special circumstance conviction should be

10

reversed based on the passage of Senate Bill 1437. The Supreme Court of California summarily

11

denied this claim. The California Court of Appeal rejected this claim as follows:

12

Defendant next challenges the constitutionality of the felony-murder

13 special circumstance. He contends that recent changes to the felony-

murder rule eliminated any distinction between the felony-murder

14 special circumstance and the felony-murder offense for nonkiller

accomplices. In his view, the absence of any distinction between the

15 two means that the felony-murder special circumstance no longer

performs the constitutionally required narrowing of death-eligible

16 murders.

17 1. Legal Principles

18 a. Eighth Amendment Narrowing of Death-Eligible Murders and

the Felony-Murder Special Circumstance

19

“The Eighth Amendment to the United States Constitution, which

20 prohibits the infliction of ‘cruel and unusual punishments,’ imposes

various restrictions on the use of the death penalty as a punishment

21 for crime. One such restriction is that any legislative scheme defining

criminal conduct for which death is the prescribed penalty must

22 include some narrowing principle that channels jury discretion and

provides a principled way to distinguish those cases in which the

23 death penalty is imposed from the many cases in which it is not. A

death-eligibility criterion that fails to meet this standard is deemed

24 impermissibly vague under the Eighth Amendment.” (People v.

Bacigalupo (1993) 6 Cal.4th 457, 462.) In California, “special

25 circumstances” set forth in section 190.2 perform the constitutionally

required “narrowing” function. (Bacigalupo, supra, at p. 468.)

26

One such special circumstance is the felony-murder special

27 circumstance set forth in section 190.2, subdivision (a)(17). It applies

commission of, or the immediate flight after committing, or

1 attempting to commit” one of various enumerated felonies (§ 190.2,

subd. (a)(17)), including robbery (§ 190.2, subd. (a)(17)(A)). The

2 felony-murder special circumstance applies to a nonkiller only if he

or she “aid[ed], abet[ted], counsel[ed], command[ed], induce[d],

3 solicit[ed], request[ed], or assist[ed] ... in the commission of murder”

“with the intent to kill” (§ 190.2, subd. (c)), or he or she “aid[ed],

4 abet[ted], counsel[ed], command[ed], induce[d], solicit[ed],

request[ed], or assist[ed] in the commission of [the underlying]

5 felony” “with reckless indifference to human life and as a major

participant ...” (§ 190.2, subd. (d)).

6

b. Felony Murder

7

Prior to 2019, section 189 defined first degree felony murder as “[a]ll

8 murder ... which is committed in the perpetration of, or attempt to

perpetrate” certain enumerated felonies including robbery. (Stats.

9 2010, ch. 178, § 51.) “The mental state required [was] simply the

specific intent to commit the underlying felony ....” (People v. Cavitt

10 (2004) 33 Cal.4th 187, 197.) Under the felony murder rule as stated

in former section 189, “[l]iability for felony murder ... extend[ed] to

11 [nonkiller accomplices] who knowingly and purposefully

participate[d] in the underlying felony even if they [took] no part in

12 the actual killing.” (People v. Dominguez (2006) 39 Cal.4th 1141,

1159.)

13

Senate Bill 1437, which became effective on January 1, 2019, “was

14 enacted to ‘amend the felony murder rule and the natural and probable

consequences doctrine, as it relates to murder, to ensure that murder

15 liability is not imposed on a person who is not the actual killer, did

not act with the intent to kill, or was not a major participant in the

16 underlying felony who acted with reckless indifference to human

life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) Substantively, Senate

17 Bill 1437 accomplishes this by amending section 188, which defines

malice, and section 189, which defines the degrees of murder, and as

18 now amended, addresses felony murder liability. Senate Bill 1437

also adds ... section 1170.95, which allows those ‘convicted of felony

19 murder or murder under a natural and probable consequences theory

... [to] file a petition with the court that sentenced the petitioner to

20 have the petitioner’s murder conviction vacated and to be resentenced

on any remaining counts ....’ (§ 1170.95, subd. (a).)” (People v.

21 Martinez (2019) 31 Cal.App.5th 719, 723.)

22 Following the enactment of Senate Bill 1437, section 189 continues

to define first degree felony murder as “[a]ll murder ... that is

23 committed in the perpetration of, or attempt to perpetrate” certain

enumerated felonies including robbery. (§ 189, subd. (a).) Newly

24 added section 189, subdivision (e) now limits liability for felony

murder to: (1) actual killers; (2) nonkillers who, “with the intent to

25 kill, aided, abetted, counseled, commanded, induced, solicited,

requested, or assisted the actual killer in the commission of murder in

26 the first degree”; and (3) nonkillers who were “major participant[s] in

the underlying felon[ies] and acted with reckless indifference to

27 human life ....”

1 In this case, the government did not seek the death penalty, and

defendant was not sentenced to death. Accordingly, he lacks standing

2 to assert an Eighth Amendment challenge to the felony murder special

circumstance. (Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 907.)

3 Instead, he asserts a vagueness challenge under the Due Process

Clause. “Objections to vagueness under the Due Process Clause rest

4 on the lack of notice, and hence may be overcome in any specific case

where reasonable persons would know that their conduct is at risk.

5 Vagueness challenges to statutes not threatening First Amendment

interests are examined in light of the facts of the case at hand; the

6 statute is judged on an as-applied basis.” (Maynard v. Cartwright

(1988) 486 U.S. 356, 361; see People v. Superior Court (Bradway)

7 (2003) 105 Cal.App.4th 297, 309 [same].)

8 2. Analysis

9 Before Senate Bill 1437, a nonkiller accomplice could be guilty of

murder under the felony-murder doctrine even if he or she neither

10 acted with intent to kill nor was a major participant in the underlying

felony who acted with reckless indifference to human life. And only

11 a subset of nonkillers convicted of felony murder was death eligible—

namely, those who acted with intent to kill and those who were major

12 participants in the underlying felony who acted with reckless

indifference to human life. After Senate Bill 1437, a nonkiller

13 accomplice can be guilty of felony murder only if he or she either

acted with intent to kill or was a major participant in the underlying

14 felony who acted with reckless indifference to human life. According

to defendant, all nonkillers convicted of felony murder are now death

15 eligible. In his view, it follows that the felony-murder special

circumstance no longer narrows the class of people eligible for the

16 death penalty. We reject defendant’s claim for the following reasons.

17 [FN 7] We express no opinion as to the retroactivity

of Senate Bill No. 1437, an issue that was not briefed

18 by the Attorney General and that is currently pending

before the California Supreme Court. . . .

19

Defendant’s challenge rests on the premise that a special

20 circumstance that duplicates the underlying theory of murder is

unconstitutional. Precedent from both the United States Supreme

21 Court and the California Supreme Court compels us to reject that

premise as flawed. State death penalty laws must narrow the class of

22 death-eligible defendants from “every defendant convicted of a

murder ... to [some] subclass [or subclasses] of defendants convicted

23 of murder.” (Tuilaepa v. California (1994) 512 U.S. 967, 972.) The

section 190.2 special circumstances do just that. Section 190.2,

24 subdivision (a)(17) in particular accomplishes the required

narrowing, as not every defendant convicted of murder is convicted

25 of felony murder. Defendant suggests that the constitution compels a

further narrowing of death-eligible defendants based on the

26 underlying theory of murder. That is, in his view, it is

unconstitutional for all defendants convicted under a particular theory

27 of murder to be death eligible. But no such additional narrowing

court considered the constitutionality of Louisiana’s capital

1 sentencing scheme, under which an individual found guilty of first

degree murder was eligible for the death penalty only if the jury found

2 at least one statutory aggravating circumstance existed. (Id. at p.

242.) In Lowenfield, the jury found a single aggravating

3 circumstance, which “duplicated one of the elements of the

[underlying] crime” of first degree murder. (Id. at p. 246.) The

4 Supreme Court concluded that the scheme was constitutional despite

that duplication.

5

California courts have relied on Lowenfield to hold that it is not

6 unconstitutional for a special circumstance to duplicate elements of

the conviction offense. (See People v. Rodriguez (1998) 66

7 Cal.App.4th 157, 164 [citing Lowenfield for the proposition that

defendant’s suggestion “that section 190.2(a)(21) contains a

8 constitutional infirmity simply because it duplicates the elements

which defined defendant’s murder as ... first degree murder ... has

9 already been decided to have no merit”]; People v. Catlin (2001) 26

Cal.4th 81, 158 [“first degree murder liability and special

10 circumstance findings may be based upon common elements without

offending the Eighth Amendment”]; People v. Edelbacher (1989) 47

11 Cal.3d 983, 1023, fn. 12 [“We do not understand defendant to contend

that the lying-in-wait special circumstance is constitutionally infirm

12 because it duplicates an element of first degree murder. As defendant

no doubt recognizes, a contention to this effect would be meritless,”

13 citing Lowenfield].) We similarly conclude that, assuming section

190.2, subdivision (a)(17) duplicates the elements of felony murder

14 for nonkiller accomplices, that duplication does not render it

unconstitutional. (See People v. Johnson (2016) 62 Cal.4th 600, 636

15 [if lying-in-wait special circumstance were “identical to lying-in-wait

first degree murder,” it nevertheless “would satisfy federal

16 constitutional requirements for death eligibility”].)

17 Alvarez, 2020 WL 1950872, at *15-17.

18 Petitioner is not entitled to relief on this claim. First, the California Supreme Court has

19 held that Senate Bill (SB) 1437 “does not apply retroactively to nonfinal judgments on direct

20 appeal.” People v. Gentile, 10 Cal. 5th 830, 852 (2020). Instead, a conviction may only be

21 challenged based on SB 1437 “through a petition filed in the sentencing court under section

22 1170.95.” Id. Here, at the time SB 1437 became effective on January 1, 2019, Petitioner’s direct

23 appeal was not final. (See Dkt. Nos. 12-37 & 12-39.) Thus, Petitioner cannot appropriately raise

24 a challenge to SB 1437 here. Instead, he must do so by filing a petition under “section 1170.95

25 [which] is the exclusive mechanism for retroactive relief.” Id. at 839.

26 Second, Petitioner’s challenge to SB 1437 must be denied because it is not unconstitutional

27 for a special circumstance to duplicate elements of the conviction offense. See Lowenfield v.

1 of the crime does not make a sentence constitutionally infirm). Here, the California Court of

2 Appeal concluded that if the elements of felony-murder special circumstance under Cal. Pen. Code

3 § 190.2(a)(17) duplicate the elements of felony murder for non-killer accomplices, that duplication

4 is not unconstitutional. That is a reasonable application of Lowenfield. Because the state court’s

5 rejection of this claim was not contrary to, nor an unreasonable application of clearly established

6 Supreme Court law, Petitioner is denied relief on Claim No. 6.

7 7. Cruel and Unusual Punishment

8 In Claim No. 7, Petitioner contends that his sentence of life without parole constitutes cruel

9 and unusual punishment under the Eight Amendment. Dkt. No. 1 at 43. The California Supreme

10 Court summarily denied this claim. The California Court of Appeal rejected this claim as follows:

11 Defendant was 21 years old at the time he committed the charged

crimes. He maintains that, given his relative youth, the imposition of

12 a life without parole (LWOP) sentence constituted cruel and unusual

punishment in violation of the federal and state constitutions. (U.S.

13 Const., 8th Amend.; Cal. Const., art. I, § 17.)

14 . . .

15 “The Eighth Amendment’s prohibition of cruel and unusual

punishment ‘guarantees individuals the right not to be subjected to

16 excessive sanctions.’ [Citation.] That right ... ‘flows from the basic

“precept of justice that punishment for crime should be graduated and

17 proportioned” ’ to both the offender and the offense. [Citations.]”

(Miller v. Alabama (2012) 567 U.S. 460, 469 (Miller).) “‘[T]he

18 concept of proportionality is central to the Eighth Amendment,’” and

is viewed “less through a historical prism than according to ‘“the

19 evolving standards of decency that mark the progress of a maturing

society.”’ [Citations.]” (Ibid.)

20

In Miller, the United States Supreme Court held that mandatory life-

21 without-parole sentences for juveniles violate the Eighth

Amendment. (Miller, supra, 567 U.S. at p. 470.) The court reasoned

22 that juveniles “are constitutionally different from adults for purposes

of sentencing ...[b]ecause juveniles have diminished culpability and

23 greater prospects for reform, [making them] ... ‘less deserving of the

most severe punishments.’ [Citation.]” (Id. at p. 471.) The court

24 noted “three significant gaps between juveniles and adults. First,

children have a ‘ “lack of maturity and an underdeveloped sense of

25 responsibility,” ’ leading to recklessness, impulsivity, and heedless

risk-taking. [Citation.] Second, children ‘are more vulnerable ... to

26 negative influences and outside pressures,’ including from their

family and peers; they have limited ‘contro[l] over their own

27 environment’ and lack the ability to extricate themselves from

and his actions less likely to be ‘evidence of irretrievabl[e]

1 deprav[ity].’ [Citation.]” (Ibid.)

2 Defendant urges us to extend Miller’s reasoning to this case on the

theory that 21-year-olds—like juveniles—lack of maturity, have an

3 underdeveloped sense of responsibility, and are particularly

vulnerable to negative influences. He points to research (from outside

4 the appellate record) showing that the brain continues to develop

beyond the age of 18, such that even people in their early twenties

5 lack full neurological maturity.

6 The Supreme Court acknowledged similar points in Roper v. Simmons

(2005) 543 U.S. 551, 574, noting that “[t]he qualities that distinguish

7 juveniles from adults do not disappear when an individual turns 18.

By the same token, some under 18 have already attained a level of

8 maturity some adults will never reach.” Nevertheless, the court

concluded that “a line must be drawn” for purposes of the Eighth

9 Amendment and the court drew that line at “the point where society

draws the line for many purposes between childhood and

10 adulthood”—age 18. (Roper v. Simmons, supra, at p. 574.) Decisions

of the United States Supreme Court on questions of federal

11 constitutional law are binding on this court. (People v. Fletcher

(1996) 13 Cal.4th 451, 469, fn. 6.) Accordingly, we are compelled to

12 reject defendant’s argument that mandatory LWOP sentences for 21-

year-olds violate the Eighth Amendment. (See People v. Perez (2016)

13 3 Cal.App.5th 612, 617 [declining to extend reasoning of Miller to

20-year-old defendant].)

14

Alvarez, 2020 WL 1950872, at *17–18.

15

The California Court of Appeal’s rejection of Petitioner’s claim alleging cruel and unusual

16

punishment under the Eighth Amendment was not objectively unreasonable. The Supreme Court

17

has issued three significant cases about the Eighth Amendment’s prohibition on cruel and unusual

18

punishment as it applies to juvenile offenders. In Roper v. Simmons, 543 U.S. 551, 578 (2005),

19

the Supreme Court held that the Eighth Amendment forbids the “imposition of the death penalty

20

on offenders who were under the age of 18 when their crimes were committed.” In Graham v.

21

Florida, 560 U.S. 48, 82 (2010), the Supreme Court held that the Eighth Amendment “prohibits

22

the imposition of a life without parole sentence on a juvenile offender who did not commit

23

homicide.” And in Miller v. Alabama, 567 U.S. 460, 465 (2012), the Supreme Court held that

24

“mandatory life without parole [sentences] for those under the age of 18 at the time of their crimes

25

violate[] the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” But nothing

26

in Miller, Graham, or Roper precludes a sentence of life without parole sentence for an adult

27

offender, even a young person like Petitioner. The Supreme Court recognized in Roper that a

1 bright line is drawn, defining eighteen-years-old as the age of adulthood: “[t]he age of 18 is the

2 point where society draws the line for many purposes between childhood and adulthood.” 543

3 U.S. at 574.

4 Petitioner argues that “[u]ntil a person reaches his mid-twenties, neurological immaturity

5 limits a young person’s ability to . . . make reasoned decisions.” Dkt. No. 1 at 45. It is true that

6 courts empathize with the inherent oversimplification inherent in the bright-line age of adulthood

7 rule. See Roper, 543 U.S. at 574 (“The qualities that distinguish juveniles from adults do not

8 disappear when an individual turns 18. By the same token some under 18 have already attained a

9 level of maturity some adults will never reach.”); People v. Gutierrez, 58 Cal. 4th 1354, 1380

10 (Cal. 2014) (“‘The qualities that distinguish juveniles from adults do not disappear when an

11 individual turns 18 . . . [but] that is the line the high court has drawn in its Eighth Amendment

12 jurisprudence.”) (internal citation omitted). But the line of adulthood has been clearly drawn at

13 eighteen by the Supreme Court, and thus, as the state appellate court reasonably concluded,

14 Petitioner was not improperly sentenced because he was only twenty-one at the time he

15 participated in the murder of G.O. The state courts’ decision denying this claim was neither

16 contrary to nor an unreasonable application of Supreme Court case law. Claim No. 7 is denied.

17 8. Cumulative Error

18 In his final claim for relief, Petitioner contends that the cumulative errors of the claims

19 raised in this petition entitle him to relief. The California Supreme Court summarily denied this

20 claim. The California Court of Appeal rejected this claim as follows:

21 Defendant contends that the cumulative effect of the errors he asserts

was to deprive him of his due process rights. “Under the cumulative

22 error doctrine, the reviewing court must ‘review each allegation and

assess the cumulative effect of any errors to see if it is reasonably

23 probable the jury would have reached a result more favorable to

defendant in their absence.’” (People v. Williams (2009) 170

24 Cal.App.4th 587, 646.) “The ‘litmus test’ for cumulative error ‘is

whether defendant received due process and a fair trial.’” (People v.

25 Cuccia (2002) 97 Cal.App.4th 785, 795.) We have assumed a single

error—that the prosecutor committed misconduct by urging a false

26 inference—so there are no errors to cumulate.

27 Alvarez, 2020 WL 1950872, at *18.

1 the cumulative effect of several errors may still prejudice a defendant so much that his conviction

2 must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) (reversing

3 conviction where multiple constitutional errors hindered defendant’s efforts to challenge every

4 || important element of proof offered by prosecution.) Cumulative error is more likely to be found

5 || prejudicial when the government’s case is weak. See Thomas v. Hubbard, 273 F.3d 1164, 1180

6 (9th Cir. 2002), overruled on other grounds by Payton v. Woodford, 299 F.3d 815, 829 n.11 (9th

7 Cir. 2002) (noting that the only substantial evidence implicating the defendant was the

8 || uncorroborated testimony of a person who had both a motive and an opportunity to commit the

9 crime). However, where only one (or no) constitutional errors exist, nothing can accumulate to the

10 || level of a constitutional violation. U.S. v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000) (“one error

11 is not cumulative error”). Here, Petitioner has failed to demonstrate cumulative error from the

12 || claims raised in this Petition. This claim for habeas relief is DENIED.

13 Hl. CONCLUSION

14 For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

3 15 A certificate of appealability will not issue because reasonable jurists would not “find the

a 16 || district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

3 17 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from the United States

18 Court of Appeals for the Ninth Circuit.

19 The Clerk shall enter judgment in favor of Respondent and close the file.

20 IT IS SO ORDERED.

21 || Dated: 7/13/2022

22

Alespurd 5 htt}

HAYWOOD S. GILLIAM, JR.

United States District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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