(HC)Ponce v. State of California

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 TONY E. PONCE, Case No. 1:21-cv-01727-KES-HBK (HC)

12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DENY PETITION FOR WRIT OF HABEAS

13 v. CORPUS AND DECLINE TO ISSUE

CERTIFICATE OF APPEALABILITY 1

14 CHRISTIAN PFEIFFER,

FOURTEEN-DAY OBJECTION PERIOD

15 Respondent.

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18 I. STATUS

19 Petitioner Tony E. Ponce (“Petitioner” or “Ponce”), a state prisoner, is proceeding pro se

20 on his Second Amended Petition for Writ of Habeas Corpus filed under 28 U. S.C. § 2254 on

21 February 25, 2022. (Doc. No. 12, “Petition”). Petitioner challenges his convictions following a

22 jury trial for (1) murder in violation of Penal Code § 187(a) with a gang special circumstance

23 pursuant to Penal Code § 190.2(a)(22) and gang and firearm enhancements pursuant to Penal

24 Code §§ 186.22(b)(1)(C) and 12022.53(d) and (e)(1); and (2) criminal street gang conspiracy in

25 violation of Penal Code § 182.5 with an additional firearm enhancement. (Case No.

26 VCF319337A). (Doc. No. 17 at 846-47; id. at 215-20).2 The Tulare County Superior Court

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302

(E.D. Cal. 2022).

28 2 All citations to the pleadings and record are to the page number as it appears on the Case Management

1 sentenced Petitioner to twenty-five years to life on the murder charge with an additional term of

2 twenty-five years to life for the related firearm enhancement, and stayed the sentence on the

3 conspiracy charge. (Id. at 224, 847).

4 On appeal, because Petitioner was only seventeen years old at the time of the offenses, the

5 Fifth Appellate District Court conditionally reversed Petitioner’s conviction and sentence and

6 remanded the matter to the juvenile court for a determination of Petitioner’s fitness for treatment

7 within the juvenile justice system. (Case No. F074797). (Doc. No. 17 at 847, 856-57). The

8 appellate court ordered that if Petitioner was found unfit for juvenile court treatment, the

9 convictions were to be reinstated, and the trial court should “determine whether to exercise its

10 discretion to strike the firearm enhancements under Senate Bill 620.” (Id. at 856-57). On July

11 10, 2019, the California Supreme Court summarily denied review. (Case No. S256140). (Doc.

12 No. 17 at 923). At a December 8, 2020 resentencing hearing, the trial court reinstated the original

13 sentence and declined to strike the firearm enhancement. (Doc. No. 18-1).

14 The Petition presents a single ground for federal habeas relief: insufficient evidence to

15 support Petitioner’s murder conviction. (Doc. No. 1 at 4). Respondent filed an Answer (Doc.

16 No. 19), arguing the sole ground for relief is without merit, and lodged the state court record in

17 support (Doc. Nos. 17, 18, 18-1). Despite requesting and receiving multiple extensions (see Doc.

18 Nos. 22 through 27), Petitioner ultimately elected not to file a reply. This matter is deemed

19 submitted on the record before the Court. After careful review of the record and applicable law,

20 the undersigned recommends the district court deny Petitioner relief on his Petition and decline to

21 issue a certificate of appealability.

22 II. GOVERNING LEGAL PRINCIPLES

23 A. Evidentiary Hearing

24 In deciding whether to grant an evidentiary hearing, a federal court must consider whether

25 such a hearing could enable an applicant to prove the petition's factual allegations, which, if true,

26 would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474

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28 and Electronic Case Filing (“CM/ECF”) system.

1 (2007). “It follows that if the record refutes the applicant's factual allegations or otherwise

2 precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id.

3 Petitioner did not request an evidentiary hearing. This Court independently finds that the

4 pertinent facts of this case are fully developed in the record before the Court; thus, no evidentiary

5 hearing is required. Cullen v. Pinholster, 563 U.S. 170 (2011).

6 B. ADEPA General Principles

7 A federal court’s statutory authority to issue habeas corpus relief for persons in state

8 custody is set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

9 Penalty Act of 1996 (AEDPA). AEDPA requires a state prisoner seeking federal habeas relief to

10 first “exhaus[t] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). If

11 the state courts do not adjudicate the prisoner’s federal claim “on the merits,” a de novo standard

12 of review applies in the federal habeas proceeding; if the state courts do adjudicate the claim on

13 the merits, then the AEDPA mandates a deferential, rather than de novo, review. Kernan v.

14 Hinojosa, 136 S. Ct. 1603, 16 04 (2016). This deferential standard, set forth in § 2254(d), permits

15 relief on a claim adjudicated on the merits, but only if the adjudication:

16 (1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

17 determined by the Supreme Court of the United States; or

18 (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

19 State court proceeding.

20 28 U.S.C. § 2254(d). This standard is both mandatory and intentionally difficult to satisfy.

21 Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S. 415, 419 (2014).

22 “Clearly established federal law” consists of the governing legal principles in the

23 decisions of the United States Supreme Court when the state court issued its decision. White, 572

24 U.S. at 419. Habeas relief is appropriate only if the state court decision was “contrary to, or an

25 unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A decision is “contrary

26 to” clearly established federal law if the state court either: (1) applied a rule that contradicts the

27 governing law set forth by Supreme Court case law; or (2) reached a different result from the

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1 Supreme Court when faced with materially indistinguishable facts. Mitchell v. Esparza, 540 U.S.

2 12, 16 (2003).

3 A state court decision involves an “unreasonable application” of the Supreme Court’s

4 precedents if the state court correctly identifies the governing legal principle, but applies it to the

5 facts of the petitioner’s case in an objectively unreasonable manner, Brown v. Payton, 544 U.S.

6 133, 134 (2005), or “if the state court either unreasonably extends a legal principle from

7 [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to

8 extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362,

9 407, (2000). “A state court’s determination that a claim lacks merit precludes federal habeas

10 relief so long as fair-minded jurists could disagree on the correctness of the state court’s

11 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The petitioner must show that the

12 state court decision “was so lacking in justification that there was an error well understood and

13 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

14 When reviewing a cla im under § 2254(d), any “determination of a factual issue made by a

15 State court shall be presumed to be correct[,]” and the petitioner bears “the burden of rebutting

16 the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt

17 v. Titlow, 571 U.S. 12, 18 (2013) (“[A] state-court factual determination is not unreasonable

18 merely because the federal habeas court would have reached a different conclusion in the first

19 instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).

20 Even if a petitioner meets AEDPA's “difficult” standard, he must still show that any

21 constitutional error had a “substantial and injurious effect or influence” on the verdict. Brecht v.

22 Abrahamson, 507 U.S. 619, 637 (1993). As the Supreme Court explained, while the passage of

23 AEDPA “announced certain new conditions to [habeas] relief,” it didn't eliminate Brecht’s actual-

24 prejudice requirement. Brown v. Davenport, 596 U.S. 118, 134 (2022). In other words, a habeas

25 petitioner must satisfy Brecht, even if AEDPA applies. See id. at 138 (“[O]ur equitable

26 precedents remain applicable ‘whether or not’ AEDPA applies.”) (citing Fry v. Pliler, 551 U.S.

27 112, 121 (2007)). In short, a “federal court must deny relief to a state habeas petitioner who fails

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1 to satisfy either [Brecht] or AEDPA. But to grant relief, a court must find that the petition has

2 cleared both tests.” Id. at 134.

3 As discussed supra, for the deferential § 2254(d) standard to apply there must have been

4 an “adjudication on the merits” in state court. An adjudication on the merits does not require that

5 there be an opinion from the state court explaining the state court’s reasoning. Richter, 562 U.S.

6 at 98. “When a federal claim has been presented to a state court and the state court has denied

7 relief, it may be presumed that the state court adjudicated the claim on the merits in the absence

8 of any indication or state-law procedural principles to the contrary.” Id. at 99. “The presumption

9 may be overcome when there is reason to think some other explanation for the state court’s

10 decision is more likely.” Id. at 99-100. This presumption applies whether the state court fails to

11 discuss all the claims or discusses some claims but not others. Johnson v. Williams, 568 U.S.

12 289, 293, 298-301 (2013).

13 While such a decision is an “adjudication on the merits,” the federal habeas court must

14 still determine the state court’ s reasons for its decision in order to apply the deferential standard.

15 When the relevant state-court decision on the merits is not accompanied by its reasons,

16 the federal court should “look through” the unexplained decision to

the last related state-court decision that does provide a relevant

17 rationale. It should then presume that the unexplained decision

adopted the same reasoning. But the State may rebut the

18 presumption by showing that the unexplained affirmance relied or

most likely did rely on different grounds than the lower state court’s

19 decision, such as alternative grounds for affirmance that were

briefed or argued to the state supreme court or obvious in the record

20 it reviewed.

21 Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The federal court “looks through” the silent state

22 court decision “for a specific and narrow purpose—to identify the grounds for the higher court’s

23 decision, as AEDPA directs us to do.” Id. at 1196.

24 III. RELEVANT FACTUAL BACKGROUND

25 The Court adopts the pertinent facts of the underlying offenses, as summarized by the

26 California Fifth District Court of Appeal. A presumption of correctness applies to these facts.

27 See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

28 ////

1 FACTUAL AND PROCEDURAL BACKGROUND

2 On the evening of June 12, 2015, Carlos H. was fatally shot by

Augustine Isarraras in the parking lot of a market and gas station

3 located in the community of Sultana. The shooting and events

preceding it were captured on surveillance video without audio.

4

The video shows Ponce pumping gas into a white vehicle as another

5 vehicle, driven by Carlos, entered the parking lot. Carlos drove past

Ponce to the opposite side of the gas pump and parked parallel to

6 Ponce’s vehicle. Ponce watched as the vehicle drove past him. As

Carlos exited his vehicle, Ponce knocked on the window of his own

7 car. Isarraras and Ponce’s younger brother, Abraham, exited the

back seat. The victim proceeded toward the market but stopped,

8 looking toward Ponce before eventually beginning to walk in

Ponce’s direction. As Carlos moved toward the group and Ponce’s

9 vehicle, Isarraras moved to the rear of the vehicle, removed a gun

from his pocket, and “racked” the gun, chambering a round. Ponce

10 was standing approximately three feet from Isarraras at that point

and looking in Isarraras’s direction. Meanwhile, Ponce, also near

11 the rear of the vehicle, motioned Isarraras forward, pointing toward

Carlos. Carlos backed away, but Ponce, Abraham, and Isarraras

12 converged on him near the entrance to the market. Isarraras

consulted with Ponce who nodded slightly, made a gesture toward

13 Carlos, and backed away. Isarraras moved closer to Carlos and shot

him in the chest. As Isarraras fired the weapon, Ponce made a hand

14 motion, potent ially a gang sign, and the three men then ran back to

their car and left the parking lot.

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Carlos died as a result of this single gunshot wound to his chest. A

16 .32 caliber shell casing was found in the driveway in front of the

market.

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I. Ponce’s Statements to Police

18

Ponce made two statements during interviews with Detective

19 Rodney Klassen. The first interview took place the day after the

shooting; the second was initiated by Ponce the following day.

20

Ponce initially denied knowing the shooter’s identity and claimed

21 the shooter came to Ponce’s house to pick something up and they

were merely giving him a ride home. Later, Ponce acknowledged

22 having a long history with Isarraras’s family, but claimed to have

only known Isarraras for about two weeks. He stated that Isarraras

23 went by the moniker “Capper” and was an up-and-coming gang

member who wanted to be “jumped in” to the gang. Isarraras is

24 younger than Ponce.

25 Ponce initially denied being a gang member himself, claiming to be

only a Southern or Sureno gang associate. He later admitted he was

26 a jumped-in member of a gang out of Los Angeles that he identified

as La Puente Tracy. Ponce reported that he had been jumped by

27 Northerners on several occasions and stated he desired to retaliate

because “karma comes around.” Ponce stated that his family,

28 including both parents, was involved in gangs. Ponce was initiating

1 his brother Abraham into the gang life but Abraham was not yet a

jumped-in gang member. Ponce stated Abraham follows in his

2 footsteps.

3 In the second interview, Detective Klassen informed Ponce that

Isarraras had confessed to being the shooter. Detective Klassen

4 showed Ponce the surveillance video of the incident. Ponce

identified himself, Isarraras, and Abraham in the video. Ponce

5 claimed that Carlos was “mad dogging” Ponce as he drove into the

gas station. Ponce tapped on the car window to get Abraham’s and

6 Isarraras’s attention so they would exit the car.

7 At the point in the video where Carlos stopped walking toward the

market and turned to face Ponce, Ponce claimed to have said,

8 “What’s up homie,” and “Why are you disrespecting me?” to

Carlos. Ponce believed Carlos wanted to fight, and Ponce likewise

9 wanted to fight Carlos for challenging or disrespecting him. Carlos

then asked if Ponce was a gang banger, to which Ponce replied,

10 “Yes, but my family is here.” As Ponce backed away from Carlos,

Ponce told Abraham and Isarraras, “Let’s jump him.”

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Ponce claimed he did not see the gun until the group converged on

12 Carlos near the market entrance. Ponce claimed that, at that point,

Isarraras asked Ponce whether “he should do it” and Ponce told

13 him, “no, put that away.”

14 In his first inte rview, Ponce stated that he blacked out prior to

Isarraras firing upon Carlos. Detective Klassen told Ponce that was

15 strange because Abraham also reported he “blacked out” at the

same point. Ponce responded that they both blacked out and they

16 both have bipolar disorder and schizophrenia. Ponce later admitted

his story about blacking out was “BS.”

17

Ponce knew before the shooting that Isarraras had a gun in his right

18 pocket. At one point, Ponce stated that he was present when the

driver of a van gave Isarraras the gun. At another point, Ponce

19 stated that Isarraras approached him in a bragging way, showed him

the gun, and stated he would have to return it that same day. After

20 the shooting, Ponce saw Isarraras give the gun, which was wrapped

in a blue rag, to the driver of the van that came to Ponce’s residence

21 to pick up Isarraras. Ponce described the gun as a small silver .32

caliber handgun.

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II. Eyewitness Testimony

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An eyewitness present at the market at the time of the shooting

24 recalled Carlos stating he “did not want any problems.” Thereafter

Carlos said, he didn’t see a way out, and so he said, okay, we’re

25 going to fight.” Then, “they shot him.” She also heard another man

ask “[w]hy had he looked at them when they were filling the tank

26 with gas.” She did not see any weapons in the victim’s hands.

27 III. Gang Evidence

28 Extensive evidence was presented at trial to establish that Ponce is a

1 member of the Sureno or Southern criminal street gang.

Additionally, Detective Neil Skrinde testified as an expert in gang

2 activities and culture. He explained that getting into a gang requires

“putting in work,” either by committing crimes for the benefit of

3 the gang, being jumped in, or having some other “body of work”

that shows allegiance to the gang. Criminal activity can also raise a

4 gang member’s status within the gang, and more heinous crimes

result in higher status.

5

Northerners and Southerners are gang rivals. Sultana is in Northern

6 gang territory, and the presence of rival gang members in that

territory is a sign of disrespect to that gang.

7

The phrase, “What’s up” is used by gang members to challenge a

8 rival to a fight. The phrase, “What do you bang” is used to

determine whether someone is a Northern or a Southerner. The

9 phrases, “Why were you looking at me” and “Where are you

from?” are similar phrases used as a way of “hitting up” a potential

10 rival.

11 Gang members want to control territory and be the strongest gang

in that territory. Gangs exert control by using respect or fear to

12 control their rivals and other citizens. Gang members may

intentionally disrespect a rival gang by going into another’s

13 territory or committing a crime against a rival. Gang members must

respond to disrespect from a rival or be considered weak.

14

When gang members are involved in a group assault, they have a

15 duty to “back their homie.” A gang member who did not participate

with others in a crime or who withdrew from the crime would be

16 perceived as a coward. A gang member would not discourage

another gang member from committing a crime.

17

Gang members carry guns to assert power and authority, as a form

18 of protection, and as a status symbol. A gang member will generally

announce to fellow gang members that he is holding a gun so others

19 will know who is armed in the event of an attack or a law

enforcement contact.

20

Detective Skrinde explained that the type of staring exhibited in the

21 surveillance video here would be considered a challenge. Neither

the person pumping gas nor the driver of the other vehicle could

22 back down from the confrontation. Once confronted by a rival, the

three individuals (Ponce, Abraham, and Isarraras) could not retreat.

23 However, those who were unarmed could step back and permit the

armed individual to “take care of business.” Detective Skrinde

24 described the gestures made by Ponce in the video as “calling

[Isarraras] up” or directing him. If a higher-ranking gang member

25 told someone lower in the hierarchy not to shoot, that person would

not shoot. However, the higher-ranking gang member could face

26 consequences for appearing weak.

27 (Doc. No. 17 at 847-52 (footnotes omitted)).

28 ////

1 IV. ANALYSIS

2 Respondent acknowledges that Petitioner’s single ground for relief was raised on direct

3 appeal to the Fifth Appellate District Court, denied on the merits (Doc. No. 17 at 846-57), then

4 subsequently raised, and summarily denied by the California Supreme Court (Id. at 923). Thus,

5 the sole ground is exhausted, and the Court looks to the Fifth Appellate District’s reasoned

6 decision in evaluating each of Petitioner’s claims under the deferential standard of review.

7 Wilson, 138 S. Ct. at 1192.

8 A. State Court Decision

9 In denying Petitioner’s insufficiency claim, the Fifth Appellate District court found as

10 follows:

11 I. Sufficiency of the Evidence

12 Ponce was not the shooter, and he was convicted of first degree

murder under a theory of direct aider and abettor liability. Ponce

13 contends there is insufficient evidence he knew of Isarraras' s plan

to commit murder or acted with intent to facilitate that offense, as

14 required to sup port his conviction for first degree murder under this

theory. We disagree.

15

In reviewing the sufficiency of the evidence, “ ‘we review the

16 whole record in the light most favorable to the judgment to

determine whether it discloses substantial evidence-that is, evidence

17 that is reasonable, credible, and of solid value-from which a

reasonable trier of fact could find the defendant guilty beyond a

18 reasonable doubt.’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507

(Cravens).) “We must presume in support of the judgment the

19 existence of every fact that the trier of fact could reasonably deduce

from the evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.)

20 “The conviction shall stand 'unless it appears “that upon no

hypothesis whatever is there sufficient substantial evidence to

21 support [the conviction].” ’ ” (Cravens, 53 Cal.4th at p. 508.) The

standard of review is the same in cases in which a conviction is

22 based primarily on circumstantial evidence. (People v. Clark (2016)

63 Cal.4th 522, 625.)

23

First degree murder involves a killing that is willful, deliberate, and

24 premeditated. (§ 189; People v. Villegas (2001) 92 Cal.App.4th

1217, 1223-1224.) “Premeditated” means the defendant thought

25 about or considered the act beforehand. (People v. Pearson (2013)

56 Cal.4th 393, 443 (Pearson); People v. Perez (1992) 2 Cal.4th

26 1117, 1123 (Perez).) “Deliberate” means “ ‘formed or arrived at or

determined upon as a result of careful thought and weighing of

27 considerations for and against the proposed course of action.’ ”

(Perez, at p. 1123.) “ ‘An intentional killing is premeditated and

28 deliberate if it occurred as the result of preexisting thought and

1 reflection rather than unconsidered or rash impulse.’ ” (Pearson, at

p. 443.) Premeditation and deliberation can occur rapidly. (People

2 v. Cook (2006) 39 Cal.4th 566, 603-604 (Cook); People v. Thomas

(1945) 25 Cal.2d 880, 900 (Thomas).) “The true test is not the

3 duration of time as much as it is the extent of the reflection.”

(Thomas, at p. 900.)

4

A conviction for first degree murder under a direct aider and abettor

5 theory of liability requires a showing that the defendant “aided or

encouraged the commission of the murder with knowledge of the

6 unlawful purpose of the perpetrator and with the intent or purpose

of committing, encouraging, or facilitating its commission.”

7 (People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu).) In other words,

the aider and abettor “must know and share the murderous intent of

8 the actual perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111,

1118.) “An aider and abettor who knowingly and intentionally

9 assists a confederate to kill someone could be found to have acted

willfully, deliberately, and with premeditation, having formed his

10 own culpable intent.” (Chiu, at p. 167.) Intent to kill may be

inferred from the defendant’s acts and the circumstances of the

11 crime. (People v. Smith (2005) 37 Cal.4th 733, 741.)

12 Here, substantial evidence supports a finding that Ponce knowingly

and intentionally aided and abetted Isarraras’s commission of

13 premeditated and deliberate murder. Ponce, a Southern gang

member, told police he had been jumped by rival Northern gang

14 members and w ished to retaliate. He rode with two younger

juveniles, one of whom Ponce knew to be armed, into rival Norteno

15 territory. Both juveniles were being indoctrinated into the gang

lifestyle. Ponce visually challenged Carlos then tapped on his own

16 car window to signal Abraham and Isarraras to get out. As Isarraras

racked his gun, Ponce motioned Isarraras forward with his left hand

17 and pointed at Carlos with his right. After Ponce and his

companions converged on Carlos, Isarraras consulted briefly with

18 Ponce, and Ponce made a slight nod and gesture toward Carlos

before backing away. Isarraras immediately proceeded forward and

19 shot Carlos. The People’s expert testified that a higher-ranking

gang member would encourage, rather than discourage, a lower-

20 ranking member to shoot a rival, particularly once the gun had been

presented. Based on this evidence, a reasonable juror could

21 determine that Ponce shared Isarraras’s intent to kill Carlos, a

perceived rival.

22

There is a modicum of evidence to suggest Ponce was unaware of

23 or did not share in Isarraras’s intent: Ponce claimed not to have

seen Isarraras initially draw his weapon and claimed to discourage

24 the shooting once he became aware of Isarraras’s intent. Video

evidence, however, shows Ponce looking in Isarraras’s direction as

25 the gun is drawn, and gesturing Isarraras toward Carlos both at that

moment and, subsequently, when Ponce claims Isarraras asked if he

26 should shoot. It was for the jury to determine from this evidence

whether Ponce’s claimed efforts to discourage the shooting were

27 credible. In contrast, our duty on appeal is to determine only

whether a reasonable trier of fact could find defendant guilty

28 beyond a reasonable doubt, not to determine whether the facts

1 might also support a contrary finding. (People v. Alexander (2010)

49 Cal.4th 846, 917.) While the jury could have relied on Ponce’s

2 denials to find Ponce not guilty, it did not do so. Substantial

evidence supports the jury’s finding of guilt.

3

Ponce also claims the incident was too brief to suggest

4 premeditation or deliberation. As stated, premeditation and

deliberation can occur rapidly. (Cook, supra, 39 Cal.4th at pp. 603-

5 604; Thomas, supra, 25 Cal.2d at p. 900.) The brevity of the event

does not negate a finding of premeditation, particularly in light of

6 Ponce’s actions. Ponce’s decision to travel with an armed associate

into rival gang territory and his stated desire to seek retaliation,

7 combined with his conduct as reflected on video surveillance, are

sufficient evidence upon which a jury could base a finding of

8 premeditation.

9 (Doc. No. 17 at 852-54).

10 B. Federal Habeas Analysis

11 As an initial matter, to the extent Petitioner asserts he is entitled to resentencing under

12 Penal Code § 1170.95,3 such is a state law issue that cannot be the basis of federal habeas relief.

13 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court

14 to reexamine state-court deter minations on state-law questions.”); see Muhammad v. Matteson,

15 No. 2:23-CV-2517-DAD-DMC-P, 2024 WL 3792394, at *2 (E.D. Cal. Aug. 13, 2024) report &

16 recommendation adopted, 2024 WL 4729409 (E.D. Cal. Nov. 8, 2024) (“As numerous other

17 federal courts have concluded, challenges to a denial of resentencing under § 1170.95 do not

18 present a federal question.”) (collecting cases). Thus, the Court addresses Petitioner’s federal

19 habeas claim that there was insufficient evidence to support his conviction.

20 The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from

21 conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the

22 crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The federal standard

23 for determining the sufficiency of the evidence to support a jury finding is set forth in Jackson v.

24 Virginia, 443 U.S. 307 (1979). Under Jackson, “the relevant question is whether, after viewing

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

26 found the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in

27 original); see also Coleman v. Johnson, 566 U.S. 650, 656 (2012) (“the only question under

28 3 See Doc. No. 12 at 5-6, raising a resentencing argument based on Penal Code § 1170.95.

1 Jackson is whether that finding was so insupportable as to fall below the threshold of bare

2 rationality”); Cavazos v. Smith, 565 U.S. 1, 2 (2011) (a reviewing court “may set aside the jury's

3 verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed

4 with the jury”).

5 The Jackson standard “must be applied with explicit reference to the substantive elements

6 of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16; Juan H. v. Allen,

7 408 F.3d 1262, 1275-76 (9th Cir. 2005). The reviewing court should look to state law for the

8 elements of the offense and then turn to the federal question of whether any rational trier of fact

9 could have found the essential elements of the crime supported by sufficient evidence beyond a

10 reasonable doubt. See Johnson v. Montgomery, 899 F.3d 1052, 1056 (9th Cir. 2018).

11 Further, when both Jackson and AEDPA apply to the same claim, the claim is reviewed

12 under a “twice-deferential standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012). As noted by

13 the Supreme Court:

14

First, on direct appeal, “it is the responsibility of the jury−not the

15 court−to decide what conclusions should be drawn from evidence

admitted at trial. A reviewing court may set aside the jury's verdict

16 on the ground of insufficient evidence only if no rational trier of

fact could have agreed with the jury.” And second, on habeas

17 review, “a federal court may not overturn a state court decision

rejecting a sufficiency of the evidence challenge simply because the

18 federal court disagrees with the state court. The federal court

instead may do so only if the state court decision was ‘objectively

19 unreasonable.’ ”

20 Coleman, 566 U.S. at 651.

21 California law defines murder as “the unlawful killing of a human being, or a fetus, with

22 malice aforethought” and requires an additional finding that the killing was “willful, deliberate,

23 and premeditated” for it to be set as first degree murder. Cal. Penal Code §§ 187(a), 189(a).

24 Under California law, “a person who aids and abets a crime is guilty of that crime even if

25 someone else committed some or all of the criminal acts.” People v. McCoy, 25 Cal. 4th 1111,

26 1117 (2001). “[A] person aids and abets the commission of a crime when he or she, acting with

27 (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of

28 committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids,

1 promotes, encourages or instigates, the commission of the crime.” People v. Beeman, 35 Cal. 3d

2 547, 561 (1984).

3 Here, the state appellate court, although not citing to Jackson, applied the same test and

4 determined there was sufficient evidence to support the Petitioner’s conviction of first degree

5 murder based on an aiding and abetting theory. In making his argument for habeas relief,

6 Petitioner references Senate Bill 1437, “which narrowed or eliminated certain forms of

7 accomplice liability for murder.” People v. Curiel, 15 Cal. 5th 433, 440 (2023). As the

8 California Supreme Court explained:

9 Senate Bill 1437 amended the felony murder rule and the natural

and probable consequences doctrine, as it relates to murder, to

10 ensure that murder 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

11 major participant in the underlying felony who acted with reckless

indifference to human life.

12

13 Id. However, Petitioner’s reliance on Senate Bill No. 1437 does not establish his entitlement to

14 federal habeas relief because the state appellate court’s opinion specifically found that “a

15 reasonable juror could determine that Ponce shared Isarraras’s intent to kill Carlos, a perceived

16 rival.” (Doc. No. 17 at 854) (emphasis added). Thus, the state court’s decision was consistent

17 with the altered requirements set forth in Senate Bill 1437.

18 Other than arguing in conclusory terms that the evidence was insufficient, Petitioner does

19 not explain how the state court’s rejection of Petitioner’s sufficiency of the evidence claim was

20 not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.

21 See generally Doc. No. 12. Other than arguing that the surveillance did not contain audio,

22 Petitioner does claim that the state court’s factual findings court were unreasonable.

23 A review of the record reveals that sufficient trial evidence supported Petitioner’s

24 conviction. Multiple witnesses testified regarding Petitioner’s gang membership and Abraham’s

25 and Isarraras’s desire to become gang members. (Doc. No. 17 at 430-37, 443, 453, 497, 511,

26 545-48). The gang expert testified regarding joining a gang, explaining that an individual would

27 have to commit criminal acts and potentially have a sponsor within the gang. (Id.). Perhaps most

28 critically, multiple surveillance videos captured the shooting. The undersigned has reviewed the

1 surveillance video and it shows Petitioner, Abraham, and Isarraras walking out of the store to

2 their vehicle, with Petitioner staying outside the vehicle to pump gas while Abraham and Isarraras

3 get inside. After the victim pulls into the gas station, Petitioner knocks on the window of his

4 vehicle and Abraham and Isarraras exit the vehicle while Petitioner and the victim begin an

5 exchange. Isarraras removes a gun from his pants and Petitioner motions toward the victim, who

6 begins to retreat. Petitioner, Abraham, and Isarraras rush towards the victim, with Isarraras in the

7 middle and Petitioner to his left. Isarraras looks at Petitioner, who nods and gestures towards the

8 victim before backing away. Isarraras then shoots the victim, and all three participants flee the

9 scene. While Petitioner argues the lack of audio on the surveillance video “creates a significant

10 hole within the evidence” because there was “no evidence of what was said between the victim

11 and the defendant during and or after the incident took place,” it was the responsibility of the jury

12 to decide what conclusions should be drawn from the evidence presented. Cavazos, 565 U.S. at

13 2; United States v. Nevils, 598 F.3d 1158, 1170 (9th Cir. 2010) (in assessing sufficiency of the

14 evidence claim, it is not the c ourt’s function to reweigh the evidence).

15 Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact

16 could have found beyond a reasonable doubt that Petitioner knew Isarraras planned to kill the

17 victim and encouraged him to do so with the requisite malice, premeditation, and deliberation.

18 As such, the state court’s rejection of Petitioner’s sufficiency of the evidence claim was not

19 contrary to, or an unreasonable application of, clearly established Supreme Court precedent, nor

20 was it based on an unreasonable determination of the facts. The undersigned recommends that

21 the Petition be denied.

22 V. CERTIFICATE OF APPEALABIILTY

23 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district

24 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;

25 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a

26 district court to issue or deny a certificate of appealability when entering a final order adverse to a

27 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th

28 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial

1 | showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires

2 | the petitioner to show that “jurists of reason could disagree with the district court’s resolution of

3 | his constitutional claims or that jurists could conclude the issues presented are adequate to

4 | deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v.

5 | McDaniel, 529 U.S. 473, 484 (2000). Because Petitioner has not made a substantial showing of

6 | the denial of a constitutional right, the undersigned recommends that the court decline to issue a

7 | certificate of appealability.

8 Accordingly, it is RECOMMENDED:

9 1. Petitioner be DENIED all relief on his Second Amended Petition for Writ of Habeas

10 Corpus (Doc. No. 12); and

11 2. Petitioner be denied a certificate of appealability.

12 NOTICE TO PARTIES

13 These Findings and Recommendations will be submitted to the United States District

14 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days

15 | after being served with a copy of these Findings and Recommendations, a party may file written

16 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned,

17 | “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen

18 | (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party

19 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its

20 | CM/ECF document and page number, when possible, or otherwise reference the exhibit with

21 || specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by

22 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. §

23 | 636(b)()(C). A party’s failure to file any objections within the specified time may result in the

24 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

25

| Dated: _ February 24, 2025 Mihaw. Wh. foareh fackte

27 HELENA M. BARCH-KUCHTA

38 UNITED STATES MAGISTRATE JUDGE

15