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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