Deleal v. Clark

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RUDY DELEAL, Case No.: 19-cv-00522-MMA-NLS

12 Petitioner,

REPORT AND

13 v. RECOMMENDATION OF UNITED

STATES MAGISTRATE JUDGE RE:

14 KEN CLARK, Warden,

DENYING PETITION FOR WRIT

15 Respondent. OF HABEAS CORPUS

16

[ECF No. 1]

17

18 I. INTRODUCTION

19 Petitioner Rudy Deleal (“Petitioner” or “Deleal”), a state prisoner, has filed a

20 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San

21 Diego Superior Court conviction for driving under the influence of a drug causing injury

22 in case number SCD265087. (ECF No. 1 at 2.) Respondent filed an answer, arguing that

23 Petitioner’s petition fails on the merits, and lodged the court records. (ECF No. 6; ECF

24 No. 7 (“Lodgment”).) Petitioner was provided with the opportunity to file a traverse by

25 July 10, 2019, (ECF No. 4 at 2,) but has failed to do so to date. After reviewing the

26 parties’ submissions and the lodgments, and for the reasons discussed below, the Court

27 RECOMMENDS the Petition be DENIED.

28 ///

1 II. FACTUAL BACKGROUND

2 The following facts are taken from the California Court of Appeal opinion:1

3

4 Megan, a stay-at-home mother and part-time model, lived with her

two children and their father in an apartment in San Diego, California. On an

5

evening in December 2015, Megan went for a walk on University Avenue to

6 a nearby store.

7

Around the same time, Jesus Contreras was driving westbound on

8 University Avenue. Contreras observed a sport utility vehicle (SUV) driving

two cars in front of him. The SUV was zigzagging and swerving between

9

lanes. Contreras reached for his phone to call 911 because he believed the

10 driver of the SUV was under the influence. Contreras saw the SUV slow

down and move to the right as if it was going to park. The SUV then

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accelerated onto the sidewalk and crashed near a recycling center.

12

Shawn Johnson was at a car wash on University Avenue when he

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heard tires screeching and a thumping sound of a vehicle hitting something.

14 Johnson turned and saw Megan fly into the air, land on the ground, and roll

over. The vehicle then crashed and stopped. Johnson took a picture of the

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vehicle and called 911.

16

San Diego Police Officer Wilton Garbutt responded to the scene of

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the accident. When he arrived, Officer Garbutt saw that a SUV had collided

18 with a traffic sign and Megan was lying in the parking lot of the car wash.

Megan was unconscious and bleeding from her head. Deleal was slouched in

19

the driver’s seat of the SUV. He was unconscious.

20

Officer Garbutt knocked on the window of the SUV several times, but

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Deleal did not respond. Officer Garbutt broke the passenger window of the

22 SUV to unlock the doors. The keys to the SUV were still in the ignition.

Officer Garbutt placed the car in park and took the keys out. Deleal was still

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unconscious when paramedics arrived approximately five minutes later.

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1 This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner

26 may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. §

2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Parke v. Raley, 506 U.S. 20, 35-36

27

(1992) (holding findings of historical fact, including inferences properly drawn from those facts, are

28 entitled to statutory presumption of correctness). Here, Petitioner does not raise a challenge to any of

1 wash. TOhffei cveird eMo ischhoawele Gd othttefr SieUdV o bctoaminmedi tstiunrgv eai ltlraanfcfiec vviidoeloat iforonm b yth me ocvairn g

2

unsafely to the right, leaving the paved portion of the roadway, and striking

3 Megan who was walking on the sidewalk. The SUV came to a stop when it

crashed into a street sign.

4

5 Paramedics transported Megan and Deleal to the hospital. Megan did

not remember being struck by a vehicle. When she woke up in the hospital,

6

she was in extreme pain and was having difficulty breathing. She had a large

7 hematoma and contusion near he left eyebrow. She was missing two teeth

and a third was partially broken. Megan had a swollen lip, abrasions on her

8

hands, and blood in her mouth. A scan revealed that Megan had bleeding in

9 her brain and had fractured her pelvis. After she left the hospital, Megan had

to learn to walk again and undergo speech therapy. At the time of trial,

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Megan still had memory loss, pain throughout her body, and migraines.

11

Dr. Mark Cannis treated Deleal. When he first came into the hospital,

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Deleal was “poorly responsive,” his eyes were closed, and he did not

13 respond to questions. He was snoring and breathing slowly. Dr. Cannis

performed numerous blood tests on Deleal. The tests were negative for

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alcohol. A urine test showed positive for methamphetamine, amphetamine,

15 marijuana, and a tricyclic antidepressant medication. Subsequent laboratory

tests on Deleal’s blood samples confirmed methamphetamine at 254

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nanograms per milliliter and amphetamine at 22 nanograms per milliliter.

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Dr. Cannis testified that initial symptoms of methamphetamine

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intoxication include agitation, hyperactivity, delirium, and delusional

19 behavior. The person may also have hallucinations or a fast heart rate. As the

methamphetamine wears out of a person’s system, the person typically has a

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“profound degree of somnolence and fatigue and tiredness. It’s as if they

21 haven’t – well, in some cases it is because they haven’t slept for days.” Dr.

Cannis had seen many patients who had experienced seizures from

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marijuana use. In Dr. Cannis’s opinion, a combination of methamphetamine

23 and marijuana could increase the possibility of seizures.

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Based on his training and experience, Dr. Cannis concluded that

25 Deleal had a provoked seizure from methamphetamine and

sympathomimetic abuse. Dr. Cannis explained that sympathomimetic refers

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to a substance or drug that causes a person to act in an agitated, delirious, or

27 adrenaline provoked state. According to Dr. Cannis, it was possible that

Deleal’s seizure was only coincidentally associated with his positive

28

1 tporxoivcookloegdy s eriezsuurlets f. rHomow mevetehra, mit pwhaest ammuicnhe manodr es ylimkeplayt hthoamt iDmeelteica ld hraudg sa. In

2

reaching this conclusion, Dr. Cannis considered that Deleal did not have

3 epilepsy or other factors that could cause seizures.

4

Ola Bawardi, a forensic toxicologist, testified that a person with a

5 blood result of methamphetamine at a level of 254 nanograms per milliliter

can be impaired for purposes of driving. For example, the person may drive

6

too fast, drive erratically, have difficulty maintaining his lane of travel, and

7 may not pay attention to things on the roadway. If a driver swerves in and

out of traffic, makes an altered movement to the right, accelerates up a curb,

8

strikes an individual, and then rolls to a rest, the driving pattern can be

9 consistent with somebody who is under the influence of methamphetamine.

10

Bawardi testified that methamphetamine can cause a person’s body to

11 “crash,” when his body becomes so fatigued that it can no longer produce

the stimulating effect typically associated with the drug. During the crash

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phase, the person can appear almost drunk and is extremely fatigued,

13 drowsy, and difficult to wake up. However, the person could still have

internal signs of stimulation such as elevated blood pressure and heart rate.

14

According to Bawardi, although a person crashing from methamphetamine

15 may be difficult to wake up, he or she would not experience a prolonged

period of unconsciousness. Unconsciousness for a period of several hours

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would be inconsistent with a person crashing from methamphetamine use.

17

Defense

18

Dr. Charles O’Connell, an emergency room physician and medical

19 toxicologist, testified that methamphetamine rarely causes seizures. In

general, it only happens in cases of massive overdose. According to Dr.

20

O’Connell, Deleal’s methamphetamine concentration of 254 nanongrams

21 per milliliter is at the very low end of recreational abuse. In order for a

seizure to occur, a person would need a significantly higher drug

22

concentration.

23

Dr. O’Connell reviewed Deleal’s medical records and investigative

24

reports regarding the accident. Dr. O’Connell testified that Deleal’s level of

25 deep sedation was not consistent with a methamphetamine “crash” because a

person coming down from a methamphetamine high would wake up from

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prodding and stimulation. Additionally, it is not consistent with

27 methamphetamine intoxication for a person to be unconscious at the wheel

of a car after the use of the drug. In Dr. O’Connell’s opinion, Deleal was not

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1 significantly intoxicated by methamphetamine at the time of the accident.

2

(Lodgment No. 6 at 2-6.) After an independent review of the trial record, the Court

3

concludes that the California Court of Appeal’s opinion represents an accurate

4

summary of the record. (See Lodgment No. 1).

5

III. PROCEDURAL BACKGROUND

6

A. Trial Court Proceedings

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Petitioner appears to have been initially charged on April 6, 2016.2 (See Lodgment

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No. 2 at 7.) Petitioner was charged with driving under the influence of drugs causing

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injury. (Id. at 8); see Cal. Veh. Code § 23153(e) (2015). The prosecution also alleged

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“that in the commission and attempted commission of the offenses, [Petitioner]

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personally inflicted great bodily injury upon . . . ANDERSON,” within the meaning of

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Cal. Penal Code §§ 1192.7(c)(8) and 12022.7(a). (Lodgment No. 2 at 8.)

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On June 6, 2016, a jury convicted Petitioner of driving under the influence of drugs

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causing injury and found true the accompanying allegations. (Id. at 118-119, 121.) On

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September 19, 2016, the trial court sentenced Petitioner to a total of 5 years in state

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prison. (Lodgment No. 1-7 at 633, 635; Lodgment No. 2 at 91.) Petitioner’s sentence was

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comprised of a middle term of two years for causing injury while driving under the

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influence of a drug and a consecutive sentence of three years for personally inflicting

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great bodily injury under Cal. Penal Code § 12022.7(a). 3 (See Lodgment No. 1-7 at

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635:19-26; Lodgment No. 2 at 48, 91.)

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2 The “Complaint-Felony” in Lodgment No. 2 includes several dates on it. The date “APR 0 6 2016”

25 appears in large, bolded font on the first page of the complaint. (Lodgment No. 2 at 7.) Another date,

“2016 Jan 14” also appears on the same page. (Id.) Additionally, the “Declaration in Support of Arrest

26 Warrant” was stamped on “2016 Jan 21,” but was signed “on this 7th day of January 2016.” (Id. at 10,

13.)

27 3 It is not clear from the record what happened to the additional enhancement under Cal. Penal Code §

28 1192.7(c)(8). The jury found the allegation associated with § 1192.7(c)(8) true, but it does not appear in

1 B. Direct Appeal

2 On October 25, 2016, Petitioner filed for appeal. (Lodgment No. 2 at 92.) In his

3 direct appeal, Petitioner claimed that his conviction should be reversed on the ground that

4 there was insufficient evidence to find him guilty of driving under the influence of a drug

5 and that the trial court erred by denying him probation. (Lodgment No. 3 at 31, 38.)

6 Petitioner argued that aside from an eyewitness’s testimony of his erratic driving pattern,

7 “there was no other credible showing that appellant was under the influence of a drug

8 while he was driving.” (Lodgment No. 3 at 34.) Petitioner further argued that the failure

9 of the prosecution’s expert witnesses to “opine that appellant was under the influence of

10 methamphetamine” along with other inconsistencies in the expert testimony meant that

11 “there [wa]s insufficient evidence, as a matter of law, to support the conviction.”

12 (Lodgment No. 3 at 34, 36–37.) On September 22, 2017, the California Court of Appeals

13 rejected petitioner’s argument stating that “[b]ased on the record before us, the jury’s

14 finding that Deleal was driving while under the influence was not based on speculation or

15 conjecture. While there was some testimony that may have contradicted the jury’s

16 finding, there was ample evidence to support the finding.” (Lodgment No. 6 at 9–10.)

17 On November 1, 2017, Petitioner sought review from the California Supreme

18 Court. (ECF No. 1 at 3.) On review, Petitioner presented the same issues that he had

19 raised with the California Court of Appeals. (See Lodgment No. 7.) On December 13,

20 2017, the California Supreme Court denied petitioner’s petition for review without

21 further comment. (Lodgment No. 8.)

22 C. Federal Habeas Proceedings

23 On March 19, 2019, Petitioner filed the instant federal petition for writ of habeas

24 corpus in this Court. (ECF No.1 at 1.)

25 IV. STANDARD OF REVIEW

26 This petition is governed by the provisions of the Antiterrorism and Effective

27 Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997).

28 Under AEDPA, a habeas petition will not be granted unless the adjudication: “(1)

1 resulted in a decision that was contrary to, or involved an unreasonable application of

2 clearly established federal law,” 28 U.S.C. § 2254(d)(1), “or (2) resulted in a decision

3 that was based on an unreasonable determination of the facts in light of the evidence

4 presented at the state court proceeding.” 28 U.S.C. § 2254(d)(2); Early v. Packer, 537

5 U.S. 3, 8 (2002) (quoting 28 U.S.C. §2254(d)(1); § 2254(d)(2)).

6 A federal court is not called upon to decide whether it agrees with the state court’s

7 determination; rather, the court applies a very deferential review, inquiring only whether

8 the state court’s decision was “objectively unreasonable.” See Yarborough v. Gentry,

9 540 U.S. 1, 5 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). “A federal

10 habeas court may issue the writ under the ‘contrary to’ clause if the state court applied a

11 rule different from the governing law set forth in [Supreme Court] cases, or if it decide[d]

12 a case differently than [the Supreme Court] ha[s] done on a set of materially

13 indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v.

14 Taylor, 529 U.S. 362, 405-06 (2000)). A state court is not required to cite Supreme Court

15 precedent when resolving a habeas corpus claim, “so long as neither the reasoning nor the

16 result of the state-court decision contradicts them.” See Early, 537 U.S. at 8. For purposes

17 of § 2254(d), clearly established federal law, means “the governing principle or principles

18 set forth by the Supreme Court at the time the state court renders its decision.” Lockyer

19 v. Andrade, 538 U.S. 63, 71–72 (2003) (citing Williams, 529 U.S. at 405, 413).

20 “The court may grant relief under the ‘unreasonable application’ clause if the state

21 court correctly identifie[d] the governing legal principle from [Supreme Court] decisions

22 but unreasonably applie[d] it to the facts of the particular case.” Bell, 535 U.S. at 694

23 (citing Williams, 529 U.S. at 407-08).

24 To meet the “unreasonable application” standard, a “state court’s decision [must]

25 be more than incorrect or erroneous.” Lockyer 538 U.S. at 75 (citing Williams, 529 U.S.

26 at 410, 412). Further, a federal court reviewing a habeas petition “must determine what

27 arguments or theories supported, or . . . could have supported, the state-court decision;

28 and then it must ask whether it is possible fairminded jurists could disagree that those

1 arguments or theories are inconsistent with the holding in a prior decision of [the

2 Supreme Court].” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is an extremely

3 deferential review and imposes a heavy burden on the Petitioner to prove that the state

4 court’s ruling on the claim was “so lacking in justification that there was an error well

5 understood and comprehended in existing law beyond any possibility for fairminded

6 disagreement.” Id. at 103.

7 To determine if “a decision was based on an unreasonable determination of the

8 facts in light of the evidence presented,” the state court’s factual findings “are presumed

9 correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537

10 U.S. 322, 340 (2003) (citing 28 U.S.C. 2254(e)(1)). A state court’s decision “will not be

11 overturned on factual grounds unless” its factual determinations were “objectively

12 unreasonable in light of the evidence presented in state court.” Miller-El v. Cockrell, 537

13 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(d)(2)); 28 U.S.C. § 2254(d)(2); see also

14 Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that “[r]easonable minds reviewing

15 the record might disagree” does not render a decision objectively unreasonable). In order

16 to grant relief under § 2254(d)(2), a federal court “must be convinced that an appellate

17 panel, applying the normal standards of appellate review, could not reasonably conclude

18 that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th

19 Cir. 2004) (citing Lockyer v. Andrade, 538 U.S. at 75) overruled on other grounds by

20 Murray v. Schirro, 745 F.3d 984, 999-1000 (9th Cir. 2014), as recognized in Kirkpatrick

21 v. Chappell, 926 F.3d 1157, 1170 n.3 (9th Cir. 2019).

22 When state’s highest court does not provide a reasoned decision, the Court “look[s]

23 through” it to the underlying appellate court decision and presumes that the higher court’s

24 “unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188,

25 1192 (2018). See also Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1996). Although not

26 entitled to perform a de novo review, if the dispositive state court does not “furnish a

27 basis for its reasoning,” federal habeas courts must conduct “an independent review of

28 the record . . . to determine whether the state court clearly erred in its application of

1 controlling federal law.” Delgado v. Lewis, 223 F.3d 976, 981, 982 (9th Cir. 2000) (citing

2 Tran v. Lindsey, 212 F.3d 1143, 1153 (9th Cir. 2000)), overruled on other grounds by

3 Lockyer, 538 U.S. at 75-76; accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

4 2003) (citing Delgado, 223 F.3d at 982).

5 V. DISCUSSION

6 In this federal habeas petition, the only issue raised by Petitioner is a challenge to

7 the sufficiency of the evidence supporting his conviction. (See ECF No. 1-2.)4

8 As a threshold matter, there is some confusion in Petitioner’s memoranda as to which

9 section of AEDPA Petitioner is moving under. In his petition, Petitioner states that the issue

10 raised is “[i]nsufficiency of the evidence to support conviction, under Jackson v. Virginia

11 (1979) 443 U.S. 307.” (ECF No. 1 at 2.) The heading for Petitioner’s argument reads

12 “Petitioner’s conviction should be reversed because under Jackson v. Virginia (1979) 433

13 U.S. 307, the evidence was insufficient to support the element requiring proof that he was

14 under the influence of a drug.” (ECF No. 1-2 at 18.) Petitioner then asserts that he should

15 be issued a writ of habeas corpus because he can meet the requirements of 28 U.S.C. §

16 2254(d)(2). (Id. at 19, 18.) However, the Ninth Circuit has held that Ҥ2254(d)(2) is not

17 readily applicable to Jackson cases” because it “does not describe the task of a court in

18 performing a Jackson analysis.” Sarausad v. Porter, 479 F.3d 671, 677, 678 (9th Cir. 2007)

19 reversed on other grounds Waddington v. Sarausad, 555 U.S. 179 (2009), as recognized

20 in Martinez v. Gonzalez, Case No.: 17-cv-1760-WQH-AGS, 2019 WL 1590471, at *3

21 (S.D. Cal. Apr. 12, 2019), appeal docketed, No. 19-55440 (9th Cir. Apr. 18, 2019); accord

22 Flores v. Beard, 533 F. Appx. 730, 731 n.1 (9th Cir. 2013). “We therefore evaluate a state

23 court’s resolution of a Jackson sufficiency-of-the-evidence claim in all cases under §

24 2254(d)(1) rather than §2254(d)(2).” Sarausad, 471 F.3d at 678. Following this Ninth

25

26 4 Petitioner failed to file a timely traverse in this case. However, the claims made by Petitioner in his

memoranda supporting his Petition do not provide any authority to support a claim that the California

27

Court of Appeal’s decision was “contrary to” clearly established Federal law. (See ECF No. 1-2 at 19-

28 20); 28 U.S.C. § 2254(d)(1). As a result, the Court will not perform any analysis under the “contrary to”

1 Circuit precedent, this Court will analyze Petitioner’s claims under § 2254(d)(1).

2 A. Sufficiency of the Evidence

3 The Supreme Court’s primary precedent on sufficiency of the evidence is Jackson

4 v. Virginia. 443 U.S. 307, 317–324 (1979), superseded by statute, Antiterrorism and

5 Effective Death Penalty Act of 1996, Pub. L. No. 1-4-132, 110 Stat. 1214, as recognized

6 in Starr v. Mitchell, No. 98-4541, 2000 WL 1529807, at *3 (6th Cir. Oct. 6, 2000);5

7 accord Foley v. Kernan, Case No.: 16-CV-408 JLS (BGS), 2018 WL 3426209, at *3

8 (S.D. Cal. July 16, 2018).6 The Supreme Court has held that “the Due Process Clause . . .

9 protects a defendant in a criminal case against conviction ‘except upon proof beyond a

10 reasonable doubt of every fact necessary to constitute the crime with which he is

11 charged.’” Jackson, 443 U.S. at 315 (quoting In re Winship, 397 U.S. 358, 364 (1970)).

12 In Jackson, the Supreme Court established that “the critical inquiry on review of the

13 sufficiency of the evidence to support a criminal conviction must be . . . to determine

14 whether the record evidence could reasonably support a finding of guilt beyond a

15 reasonable doubt.” 443 U.S. at 318. However, a court reviewing such evidence should not

16 “ask itself whether it believes that the evidence at trial established guilt beyond a

17 reasonable doubt.” Id. at 318–19 (quoting Woodby v. INS, 385 U.S. 276, 282 (1966))

18 (alteration in original) (internal quotation marks omitted). Rather, a reviewing court is

19 called upon to evaluate “whether, after viewing the evidence in the light most favorable

20

21 5 Although Jackson has been superseded by AEDPA, the Jackson standards for sufficiency of evidence

have continued to be applied by courts in the Ninth Circuit. See e.g., United States v. Nevils, 598 F.3d

22 1158, 1163-64 (9th Cir. 2010); Maquiz v. Hedgpeth, 907 F.3d 1212, 1217 (9th Cir. 2018); Foley v.

Kernan, Case No.: 16-CV-408 JLS (BGS), 2018 WL 3426209, at *3-4 (S.D. Cal. July 16, 2018);

23

Granados v. Montgomery, Case No.: 19cv0517 GPC (NLS), 2019 WL 3288953, at *11 (S.D. Cal. July

24 22, 2019). The Supreme Court has also reaffirmed the Jackson standard. See McDaniel v. Brown, 558

U.S. 120, 132-33 (2010). Therefore, the Court has applied the Jackson standard to this case.

25 6 In its discussion of the sufficiency of the evidence in Petitioner’s case, the California Court of Appeal

drew its definition of “‘[s]ubstantial evidence’” from People v. Gallardo, 22 Cal. App. 4th 489, 492

26 (1994). (Lodgment No. 6 at 7.) Gallardo in turn quoted from People v. Johnson, 26 Cal. 3d 557, 578

(1980), which relied heavily on Jackson v. Virginia, 443 U.S. 307 (1979). As a result, the general

27

standard for sufficiency of the evidence is ultimately drawn from Jackson. See e.g., Foley v. Kernan,

28 2018 WL 3426209, at *3 (finding that by citing state precedents that “directly rely on Jackson v.

1 to the prosecution, any rational trier of fact could have found the essential elements of the

2 crime beyond a reasonable doubt.” Id. at 319 (citing Johnson v. Louisiana, 406 U.S. 356,

3 362 (1972)) (alteration in original). The Jackson Court further specified “that upon

4 judicial review all of the evidence is to be considered in the light most favorable to the

5 prosecution.” Id. (alteration in original).

6 The Ninth Circuit has interpreted Jackson as creating “a two-step inquiry.” U.S. v.

7 Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010). Using the language of Jackson, the Ninth

8 Circuit held that a court evaluating the sufficiency of evidence must first consider that

9 evidence “in the light most favorable to the prosecution” and in doing so, presume that

10 any factual conflicts in the record were resolved “‘in favor of the prosecution.’”7 Id.

11 (quoting Jackson, 443 U.S. at 326). Second, “the reviewing court must determine

12 whether this evidence . . . is adequate to allow ‘any rational trier of fact [to find] the

13 essential elements . . . beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at

14 319) (alterations in original). This inquiry should be applied “with reference to the

15 elements of the criminal offense as set forth by state law.” Juan H. v. Allen, 408 F.3d

16 1262, 1275 (9th Cir. 2005) (citing Jackson, 443 U.S. at 324 n. 16); accord Gonzales v.

17 Gipson, 701 Fed. Appx. 558, 560 (9th Cir. 2017) (quoting Juan H., 408 F.3d at 1275).

18 Circumstantial evidence may be sufficient by itself. Granados v. Montgomery, Case No.:

19 19cv0517 GPC (NLS), 2019 WL 3288953, at *11 (S.D. Cal. July 22, 2019) (quoting

20 Maquiz v. Hedgpeth, 907 F.3d 1212, 1218 (9th Cir. 2018)). However, the Ninth Circuit

21 has noted that “[s]peculation and conjecture cannot take the place of reasonable

22 inferences and evidence -- whether direct or circumstantial.” Juan H., 408 F.3d at 1275.

23 Additionally, the Ninth Circuit has specified that “[a]fter AEDPA, we apply the

24 standards of Jackson with an additional layer of deference.” Juan H., 408 F.3d at 1275

25

26

7 The full quote from Jackson reads as follows: “a federal habeas court faced with a record of historical

27

facts that supports conflicting inferences must presume––even if it does not affirmatively appear in the

28 record––that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to

1 (citing 28 U.S.C. § 2254(d)). Finally, decisions of circuit courts may be considered “to

2 the extent that they illuminate the meaning and application of Supreme Court

3 precedents,” id. (citing Casey v. Moore, 386 F.3d 896, 907 (9th Cir. 2004)), but “only

4 ‘clearly established Federal law, as determined by the Supreme Court of the United

5 States’ can be the basis for relief under AEDPA.” Id. (quoting 28 U.S.C. § 2254(d)).

6 B. Analysis

7 Petitioner was convicted of violating Section 23153(e) of the California Vehicle

8 Code.9 (Lodgment No. 2 at 118.) This Section states:

9 It is unlawful for a person, while under the influence of any drug, to drive a

vehicle and concurrently do any act forbidden by law, or neglect any duty

10

imposed by law in driving the vehicle, which act or neglect proximately

11 causes bodily injury to any person other than the driver.

12

Cal. Veh. Code § 23153(e) (2015). The California Court of Appeal has specified that the

13

elements of this offense are:

14

15

(1) driving a vehicle while under the influence of an alcoholic beverage or

16 drug; (2) when so driving, committing some act which violates the law or is

a failure to perform some duty required by law; and (3) as a proximate result

17

of such violation of law or failure to perform a duty, another person was

18 injured.

19

People v. Minor, 28 Cal. App. 4th 431, 438 (1994) (citing People v. Capetillo, 220 Cal.

20

App. 3d 211, 216 (1990)). Further, the California Court of Appeal has stated that “[t]o be

21

‘under the influence’ within the meaning of the Vehicle Code, the liquor or liquor and

22

23

24

8 The Ninth Circuit stated in Gonzales v. Gipson that when “the Antiterrorism and Effective Death

Penalty Act (‘AEDPA’) applies . . . ‘we owe a “double dose of deference”’ to the state court’s

25 judgment.” 701 Fed. Appx. 558, 559 (9th Cir. 2017) (quoting Long v. Johnson, 736 F.3d 891, 896 (9th

Cir. 2013)). However, the Ninth Circuit has not clearly distinguished this standard from the AEDPA

26 standard itself. For example, in Juan H., the Ninth Circuit stated “that we must ask whether the decision

of the California Court of Appeal reflected on an ‘unreasonable application’ of Jackson and Winship to

27

the facts of this case.” 408 F.3d at 1275 (citing 28 U.S.C. §2254(d)(1)).

28

9 In the current version of the California Vehicle Code this is Section 23153(f). See Cal. Veh. Code §

1 drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to

2 an appreciable degree the ability to operate a vehicle in a manner like that of an

3 ordinarily prudent and cautious person in full possession of his faculties.” Byrd v.

4 Municipal Court, 125 Cal. App. 3d 1054, 1058 (1981) (citing People v. Haeussler, 41

5 Cal. 2d 252, 261 (1953)) (alteration in original); accord People v. McNeal, 46 Cal. 4th

6 1192-93 (2009) (quoting Byrd, 125 Cal. App. 3d at 1058).

7 Petitioner appears to argue that there was insufficient evidence to support a finding

8 that he was under the influence of a drug at the time of the accident, thereby invalidating

9 his conviction for driving under the influence causing injury. (See ECF No. 1-2 at 19–

10 20.) Petitioner presents two primary arguments in support of this contention: First,

11 relying on the testimony of his expert witness, Petitioner essentially argues that aside

12 from his driving pattern, the circumstances under which he was found at the scene of the

13 accident and the symptoms he presented following the accident were “not consistent with

14 meth intoxication.” (Id. at 19 (citations omitted).) Second, Petitioner argues that “neither

15 of the prosecution’s experts could say with any degree of certainty that a person

16 presenting with petitioner’s symptoms right after the collision was under the influence of

17 methamphetamine for purposes of driving.” (Id. at 20.)

18 Respondent rejects these arguments, contending that there was sufficient evidence

19 to find Petitioner guilty. (See ECF No. 6-1 at 6-12.) Respondent argues that

20 “[Petitioner’s] erratic and unlawful driving, his blood test results, and the testimony of

21 both his treating physician and the forensic toxicologist, constituted substantial evidence

22 that [Petitioner] was under the influence of methamphetamine at the time he struck the

23 victim.” (Id. at 12.)

24 In line with the precedents established by the Supreme Court, this court “‘look[s]

25 through,’” the California Supreme Court’s unexplained opinion to examine the reasoning

26 of the California Court of Appeal. See Wilson, 138 S. Ct. at 1192; (Lodgment No. 8;

27 Lodgment No. 6).

28 In its opinion, the California Court of Appeal rejected Petitioner’s argument that

1 the only evidence in the record supporting the first element of the charge, driving under

2 the influence of a drug, was the manner of his driving, which was insufficient to sustain

3 his conviction by itself. (See Lodgment No. 6 at 8-9.) In so doing, the Court of Appeal

4 highlighted additional evidence in the trial record that, in the court’s estimation, tended to

5 support Petitioner’s conviction. This evidence included testimony from an eyewitness,

6 Jesus Contreras, who observed Petitioner’s erratic driving pattern, the accident itself, and

7 believed Petitioner was under the influence. (Id. at 8.) In addition, the Court of Appeal

8 noted that the prosecution had presented evidence showing that Petitioner “had

9 methamphetamine in his blood at a level of 254 nanograms per milliliter.” (Id.) The Court

10 of Appeal further pointed to evidence from Ola Bawardi, a forensic toxicologist and

11 expert witness. (See id. at 9, 5.) Bawardi testified that Petitioner’s “driving pattern was

12 consistent with somebody under the influence of methamphetamine,” and that it was

13 possible for a person with the same level of methamphetamine in their blood as Petitioner

14 presented to “be impaired for the purpose of driving.” (Id. at 9.) Finally, the Court of

15 Appeal noted that Petitioner’s elevated heart rate was a symptom that was consistent with

16 methamphetamine intoxication. (Id.)

17 Additionally, the Court of Appeal also rejected Petitioner’s second line of

18 argument that the conflicting testimony of expert witnesses at trial reduces the finding

19 that he was under the influence of methamphetamine to “speculation and conjecture.” (Id.

20 at 9.) In rejecting Petitioner’s argument that his unconsciousness was not consistent with

21 methamphetamine intoxication, the appellate court noted Bawardi’s testimony that

22 responses to methamphetamine are very individualized and can depend on a range of

23 factors such as the “individual’s health.” (See id.) Bawardi also testified “that seizures

24 can occur at any level of methamphetamine intoxication.” (Id.) Finally, the Court of

25 Appeal highlighted the fact that although Dr. Cannis, the physician who treated

26 Petitioner, had conceded it was possible for Petitioner’s seizure to only have been

27 coincidental to his methamphetamine levels, he testified that “it was much more likely

28 that [Petitioner] had a provoked seizure from methamphetamine and sympathomimetic

1 drugs.” (Id. at 9.) The court also emphasized that Dr. Cannis based his conclusions on his

2 experience with thousands of methamphetamine patients, the extensive testing he had

3 conducted on Petitioner, and that Petitioner had no history of seizures caused by other

4 reasons. (Id.)

5 Despite the presence of contrasting evidence in the trial record, the Court of

6 Appeal concluded that there was sufficient evidence to support the jury’s finding and

7 sustain Petitioner’s conviction. Analyzing this conclusion within the context of AEDPA,

8 this Court cannot say that the Court of Appeal’s decision represented an “unreasonable

9 application of” the standard for sufficiency of evidence established by the Supreme Court

10 in Jackson. See 28 U.S.C. § 2254(d)(1); Jackson, 443 U.S. at 315, 318-19, 326. In order

11 for a state court’s decision to violate the AEDPA standard, that court’s “application must

12 be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. at 75 (citing Williams, 529

13 U.S. at 409). Further, the Supreme Court has clearly established that “[s]ection 2254(d) .

14 . . [is] designed to confirm that state courts are the principal forum for asserting

15 constitutional challenges to state convictions,” and that Petitioner has the substantial

16 burden of “show[ing] that the state court’s ruling . . . was so lacking in justification that

17 there was an error well understood and comprehended in existing law beyond any

18 possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. Given these

19 standards and the foregoing evidence considered by the Court of Appeal in reaching its

20 decision, this Court concludes that Petitioner has not made the necessary showing to

21 establish that the Court of Appeal’s decision represented an “unreasonable application

22 of” the Jackson standard. See 28 U.S.C. § 2254(d)(1); Jackson, 443 U.S. at 315, 318-19,

23 326.

24 Moreover, based on an independent review of the record, this Court finds

25 additional evidence not specifically cited by the Court of Appeal that could have

26 supported the jury’s verdict. (See Lodgment No. 1.) For example, the jury had the

27 opportunity to view footage of the accident from a nearby security camera, which at least

28 showed Petitioner’s SUV making unsafe movements before the accident. (See Lodgment

1 No. 1-2 at 95-100.) Additionally, the jury heard testimony from Dr. Cannis that while he

2 was treating Petitioner, he “obtained a urine toxicologic panel, which showed positive

3 methamphetamines, positive amphetamines, positive tetrahydrocannabinol, which is

4 marijuana. Positive for tricyclic antidepression medication.” (Lodgment No. 1-3 at

5 199:19-23.) Dr. Cannis also testified that marijuana can cause seizures and that

6 combining it with methamphetamine can increase the likelihood of a person suffering

7 from a seizure. (Id. at 226, 227.)

8 The record also indicated that the jury may have had reasons for discounting the

9 testimony of Dr. O’Connell, the defense’s expert witness. For instance, the Court notes

10 that even Dr. O’Connell could not opine with certainty that Petitioner had suffered from a

11 seizure. When asked “it’s your opinion here today . . . that we don’t even know if the

12 defendant had a seizure, correct” Dr. O’Connell replied “It’s possible. I mean, I don’t

13 have another explanation.” (Lodgment No. 1-4 at 433:6-9.) Further, Dr. O’Connell

14 testified that his final report stated that it was “unclear” what caused Petitioner’s “altered

15 mental status.”10 (Id. at 435.) Such testimony does not reflect certainty. Dr. O’Connell

16 also conceded that his evaluation of Petitioner’s records in the absence of the opportunity

17 to personally examine him effectively amounted to “Monday morning quarterbacking.”

18 (Id. at 441.) Finally, when asked whether he “recommend someone driving with 254-

19 nanograms per milliliter [of methamphetamine] in their system,” Dr. O’Connell testified

20 “[t]hat’s a difficult question to answer. There are some tests that show under 200 actually

21 enhances driving behavior. 254 is a little above that range.” (Id. at 444:6-7,8-10; see also

22 id. at 425-27.)

23 Petitioner’s primary argument for why his writ of habeas corpus should be granted

24 is based on perceived inconsistencies in the record, primarily in the testimony of the

25 witnesses. (See ECF No. 1-2 at 19-20.) However, the Writ of Habeas Corpus is “an

26

27 10 On cross-examination, the prosecutor asked Dr. O’Connell: “isn’t it true that your final conclusion in

28 this case was that the cause of [Petitioner’s] altered mental status at the time of the incident is unclear?”

1 extraordinary remedy,” and this Court is required to view all of the evidence presented at

2 trial in the light most favorable to the prosecution. Jackson, 443 U.S. at 319; see e.g.,

3 Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (“[T]he writ of habeas corpus has

4 historically been regarded as an extraordinary remedy. . . .”). Evaluation of evidence and

5 resolution of factual disputes is the purview of the trier of fact. Jackson, 443 U.S. at 319.

6 It is not the place of this Court to disturb the evaluations or resolutions made by the

7 finder of fact, and any attempt to do so would be a clear violation of the standards

8 governing review of the sufficiency of the evidence, as this Court must consider all

9 factual disagreements to have been resolved in the prosecution’s favor. See id. at 326 (“a

10 federal habeas court . . . must presume . . . that the trier of fact resolved any such conflicts

11 in favor of the prosecution, and must defer to that resolution.”) As the foregoing

12 discussion shows, the evidence presented by Petitioner does not rise above the level of

13 factual inconsistency or disagreement amongst the testimony presented at trial. Since the

14 Court must presume such disagreements resolved in the prosecution’s favor, the Court

15 cannot recommend that a Writ be issued on the grounds of insufficient evidence. See

16 Jackson, 443 U.S. at 326.

17 Finally, although not required, the Court will briefly consider the argument from

18 Petitioner’s brief that his conviction “was based on an unreasonable determination of the

19 facts in light of the evidence presented.” See (ECF No. 1-2 at 19-20); 28 U.S.C. §

20 2254(d)(2). Even under this provision, the petition fails. In order for a petition to be

21 granted under Section 2254(d)(2), the state court’s decision has to be “objectively

22 unreasonable.” Miller-El, 537 U.S. at 340. “It is objectively unreasonable, for example, to

23 fail to make an obvious factual finding, to misapprehend or misstate the record with

24 respect to material facts, or to ignore evidence in support of a petitioner’s claim.” Lopez

25 v. Jenkins, No. 08cv0457–LAB (AJB), 2009 WL 4895274, at *2 (S.D. Cal. Dec. 10,

26 2009) (citing Taylor, 366 F.3d at 992). Petitioner appears to argue that the state court

27 “fail[ed] to make an obvious factual finding” by not finding that Petitioner was not under

28 the influence at the time of accident. See Lopez, 2009 WL 4895274, at *2; (ECF No. 1-2

1 || at 19-20.) However, given the evidence presented at trial supporting the conclusion that

2 || Petitioner was under the influence that was addressed in the foregoing discussion,

3 || Petitioner has not made a sufficient showing that either the jury’s verdict or the Court of

4 || Appeal’s opinion reflected an “unreasonable determination of the facts.” See 28 U.S.C. §

5 || 2254(d)(2).

6 Accordingly, for all of the foregoing reasons, the Court recommends that

7 || Petitioner’s habeas petition be DENIED.

8 || VI. CONCLUSION AND RECOMMENDATION

9 The Court submits this Report and Recommendation to United States District

10 || Judge Michael M. Anello under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the

11 |] United States District Court for the Southern District of California. In addition, IT IS

12 |} HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting

13 || this Report and Recommendation, and (2) directing that Judgment be entered DENYING

14 || the Petition.

15 IT IS HEREBY ORDERED that any party to this action may file written

16 || objections with the Court and serve a copy on all parties no later than November 6, 2019.

17 || The document should be captioned “Objections to Report and Recommendation.”

18 IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with

19 Court and served on all parties no later than November 20, 2019. The parties are

20 || advised that failure to file objections within the specified time may waive the right to

21 those objections on appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d

22 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (Oth Cir. 1991).

23 |lDated: October 15, 2019 . 2 ZO s

24

25 Hon. Nita L. Stormes

United States Magistrate Judge

27

28