“Because, 4 here, neither the court of appeal nor the California Supreme Court issued a reasoned opinion on 5 the merits of this claim, we look to the trial court’s decision.”
How later courts described this case
- “Because, 4 here, neither the court of appeal nor the California Supreme Court issued a reasoned opinion on 5 the merits of this claim, we look to the trial court’s decision.”
- “Because 8 the California Supreme Court denied review of Gill’s habeas petition without comment, we look 9 through the unexplained California Supreme Court decision to the last reasoned decision . . . as 10 the basis for the state court’s judgment.”
- reviewing the decision of the court of appeal, which was last 7 reasoned decision of a state court
- “To conclude that the state 27 court decision was objectively unreasonable, we must find that no fairminded jurist could agree 28 with the state court’s decision.”
Written by the judges who cited it.
The opinion
1
2
3
4
5 UNITED STATES DISTRICT COURT
6 FOR THE EASTERN DISTRICT OF CALIFORNIA
7
8 JESUS GUTIERREZ, Jr., Case No. 2:23-cv-0712-KJM-JDP (P)
9 Petitioner,
10
v.
11
OAK SMITH,
12
Respondent.
13
14 CHRISTOPHER VANNING JOHNSON, Case No. 2:23-cv-0920-KJM-JDP (P)
15
Petitioner,
16
v.
17 ORDER; FINDINGS AND
TRENT ALLEN, RECOMMENDATIONS
18
Respondent.
19
20
21 Petitioners, former codefendants convicted in state court of second-degree murder, have
22 both filed petitions for habeas corpus under 28 U.S.C. § 2254 in the related cases captioned
23 above. Their petitions raise substantively similar arguments, and I address both in these findings
24 and recommendations. Both petitioners argue that: (1) defense counsel was ineffective in failing
25 to object to the prosecutor’s argument that her account of the evidence satisfied the state’s
26 burden; (2) the prosecution failed to prove that Johnson did not act in perfect or imperfect self-
27 defense (and, consequently failed to prove that Gutierrez aided or abetted a homicide); and
28 (3) that, as a general matter, there was insufficient evidence to sustain their convictions.
1 Gutierrez, ECF No. 1 at 2-3; Johnson, ECF No. 1 at 2-3. The respective respondents have
2 answered both petitions, and both petitioners have filed traverses. Gutierrez, ECF Nos. 24 & 33;
3 Johnson, ECF Nos. 22 & 24.1 Both petitions should be denied.
4 Background
5 I have reviewed the background summary articulated by the state appellate court on direct
6 appeal. It is correct, and I reproduce a portion of it here for factual context:
7 Prosecution Evidence
8 Jordan Hendricks and Cromwell were close friends.2 They sold and
used drugs together. At noon on the day of the shooting, Hendricks
9
went to Cromwell’s house. The two men took Xanax. That
10 evening, they went to Fairfield to sell marijuana. Cromwell drove
the car, a silver Acura with windows so tinted one could not see
11 through them. Hendricks rode in the passenger seat. Both men
carried firearms.
12
Cromwell parked the Acura near an apartment complex. The two
13
men got out of the car and walked around looking for a buyer. But
14 a buyer “never came,” so the two men walked through an alley back
to the Acura. Hendricks put his gun under the passenger seat.
15 Cromwell drove away.
16 When they reached a nearby intersection, a dark car pulled up next
to the Acura. The passenger in the dark car had his upper body
17
“hanging out the window.” He had a “gun pointed” at the Acura.
Hendricks grabbed his gun “for self-defense.” Hendricks could not
18
remember who fired first, but he heard enough shots being fired
19 that he decided to “shoot back.” Cromwell did not fire his gun.
Seconds later, Cromwell “got shot” in the head. The Acura
20 accelerated, then crashed.
21 Hendricks got out of the Acura, threw his gun under a parked car,
and ran to a nearby house to ask for help. The police arrived and
22
arrested him. Hendricks lied to the police about the incident: he
23 claimed a man named Leon shot the gun from the Acura. But when
confronted by the police with surveillance video, Hendricks
24 admitted Leon was not in the car and that he—not Leon—shot the
gun. Hendricks told the police that “somebody pulled up hanging
25 out the window shooting at [him] so [he] shot back.”
26
27 1 Given that references are made to the docket in each of the related cases, the name of the
petitioner has been added before the electronic docket citation to distinguish them.
28 2[footnote two in original text] Hendricks testified under a grant of immunity.
1 On cross-examination, Hendricks acknowledged that both he and
Cromwell knew of Johnson. But Hendricks denied knowing
2
Johnson was in the dark car. Cromwell’s phone contained
YouTube videos with comments about where to find a man with
3
one leg who was “hiding.” Johnson had a prosthetic leg.
4
Neighbor’s Testimony
5
On the night of the shooting, a woman who lived in the
6 neighborhood saw a “handful” of people—including a man named
“Chris”—hanging out by the white picket fence surrounding her
7
front yard. As Johnson spoke with a woman in the group, two men
8 came out of an alley across the street. Johnson appeared to
recognize the men. Johnson said, “‘Look. There they are.’” He
9 “pulled a gun out of his pants” and held it “by his side.” Johnson
seemed “adrenaline excited” but not nervous or scared. When the
10 men walked in the other direction, Johnson put the gun away and
resumed his conversation.
11
Minutes later, a black Chevy Impala pulled up by the fence. A
12
woman got out of the car and went inside a nearby house. Then an
13 Acura drove up, stopped at the intersection, and turned left.
Johnson seemed to recognize the people in the Acura. He was
14 excited, even more so than when he saw the men coming out of the
alley. He “did not appear . . . scared.” Johnson quickly got into the
15
passenger seat of the Impala and yelled in a loud voice at the driver
to “‘follow the car.’” Johnson commanded: “‘Go get them. Follow
16
them. Follow that car.’”
17
As the Impala sped away, Johnson hoisted his body onto the
18 passenger side windowsill. The top half of Johnson’s body hung
out of the passenger window. Johnson held a gun in his hands.
19 Seconds later, the neighbor heard gunshots and car tires
“screeching.” Then the Impala returned. Johnson “stumbled” out
20
of the car and yelled at the people by the fence to get inside a
21 nearby house. He was frantic. At that point, the neighbor called
911.
22
Police Investigation
23
Police officers found Cromwell in the driver’s seat of the Acura,
24 dead. In Cromwell’s jacket pocket was a gun with a magazine
filled to capacity. Officers found shell casings in the seat,
25
floorboard, and backseat of the Acura. There were bullet holes in
26 the driver’s side of the car. Nearby, police officers located the
Impala. Gutierrez was in the driver’s seat. The driver’s side
27 window was shattered. Police found “expended shell casings on
28
1 top of the driver’s side doorframe.” The front passenger window
was down.
2
Surveillance video footage from a nearby building showed
3
Hendricks and Cromwell walking through the alley. Another video
4 showed the Impala quickly overtake the Acura, pause for a few
seconds, and drive away. After watching the video, a police officer
5 testified there were “six to eight flashes” that appeared “to be a
discharge of firearms” from inside the Acura. The video did not
6 show the passenger side of the Impala, so the officer could not “tell
if someone [was] hanging out” of the Impala or firing shots from
7
the passenger side of that car.
8
In a police interview, Johnson claimed he was the victim of two
9 shootings. The first shooting occurred when Johnson was on the
sidewalk near the white picket fence: a car “pulled up,” “started
10 shooting,” then sped “away.” After the shooting, Johnson decided
to leave because he thought the car “was going to come back.” He
11
and Gutierrez got into Gutierrez’s Impala. Gutierrez drove in the
12 same direction as the car that had shot at them. The Impala
happened to go this way, according to Johnson, because it was the
13 route to his house. Earlier in the interview, Johnson told police he
was homeless.
14
Johnson described the second shooting: he said the car pulled up
15
next to the Impala and “said stuff.” Johnson could not see inside the
car because the darkly-tinted windows were up. Then Johnson felt
16
a bullet “hit the window, hit the car.” The Impala drove away.
17 Johnson denied having—or shooting—a gun. But he
acknowledged he would have “gunshot residue on [his] hands”
18 from visiting “the shooting range.”
19 Defense Evidence
20
Gutierrez testified he drove the Impala to the neighborhood where
21 the shooting occurred and parked outside a house with a white
picket fence. Gutierrez had a gun that he hid in the Impala. A car
22 with “very tinted” windows drove by, slowed down, then “sped
off.” As soon as the car left, Johnson “hopped in” the Impala and
23 said, “‘Did you see that? Did you see that car?’” Gutierrez
responded, “Yes.”
24
Johnson wanted to see “who was in the car,” so he told Gutierrez to
25
follow it. Gutierrez followed Johnson’s directions despite knowing
26 that he would be unable to “see anybody” in the car because the
windows were “so tinted.” Gutierrez did not see a gun in Johnson’s
27 hands. The two men did not speak while they followed the car.
28
1 Gutierrez drove fast and “pulled up beside” the car. Someone from
the car “started shooting” and bullets “were flying” at the Impala.
2
Gutierrez froze and tried to “take cover.” Johnson said, “‘Go. Go.
Go. Drive off. Drive off.’” Before he did so, Gutierrez heard two
3
or three gunshots that “sounded very close to [him].” At that point,
4 Gutierrez knew Johnson had a gun. Gutierrez did not fire his gun.
He drove away and threw his gun in the bushes. Gutierrez lied to
5 the police about the incident because “a lot of things were going
through [his] mind and [he] didn’t really know what to say and
6
what not to say.”
7
Johnson’s girlfriend, Victoria C., was with Johnson and Gutierrez
8 in front of the white picket fence on the day of the shooting.
Victoria watched Johnson get into the Impala. She did not see
9 whether he had anything in his hands. She did not see him hanging
out of passenger window.3 Soon after Johnson and Gutierrez drove
10 away, Victoria heard gunshots. Then the Impala returned. Johnson
got out of the car and said, “‘It just went down.’”
11
12 Johnson told Victoria to “‘run into the house.’” She ran into the
backyard, where she, Johnson, and Gutierrez hid. Johnson told
13 Victoria that an Acura had shot at the Impala. He did not ask
Victoria to call 911; he did not tell her he acted in self-defense.
14 Victoria acknowledged repeatedly lying to police and to a defense
investigator.
15
A forensic scientist testified that a person hanging his torso out of
16
the front passenger side window of the Impala would have “a high
17 probability of getting shot.”
18
19 Gutierrez, ECF No. 22-26 at 2-8.
20
21 Discussion
22 I. Legal Standards
23 A federal court may grant habeas relief when a petitioner shows that his custody violates
24 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75
25 (2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty
26 Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See Harrington v. Richter,
27
3[footnote three in original text] A friend of Johnson’s testified Johnson was not hanging
28 out of the window of the Impala and did not have a gun in his hands.
1 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court examines the decision of the
2 last state court that issued a reasoned opinion on petitioner’s habeas claims. See Wilson v. Sellers,
3 138 S. Ct. 1188, 1192 (2018); Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003) (“Because,
4 here, neither the court of appeal nor the California Supreme Court issued a reasoned opinion on
5 the merits of this claim, we look to the trial court’s decision.”); McCormick v. Adams, 621 F.3d
6 970, 975-76 (9th Cir. 2010) (reviewing the decision of the court of appeal, which was last
7 reasoned decision of a state court); Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003) (“Because
8 the California Supreme Court denied review of Gill’s habeas petition without comment, we look
9 through the unexplained California Supreme Court decision to the last reasoned decision . . . as
10 the basis for the state court’s judgment.”) (internal quotations omitted).
11 Under AEDPA, a petitioner may obtain relief on federal habeas claims that have been
12 “adjudicated on the merits in state court proceedings” only if the state court’s adjudication
13 resulted in a decision (1) “contrary to, or involved an unreasonable application of, clearly
14 established Federal law, as determined by the Supreme Court of the United States” or (2) “based
15 on an unreasonable determination of the facts in light of the evidence presented in the State court
16 proceeding.” 28 U.S.C. § 2254(d).
17 II. Analysis
18 a. Ineffective Assistance of Counsel
19 Petitioners argue that defense counsel was ineffective in failing to object to the
20 prosecutor’s closing argument. The state court of appeal rejected this claim:
21 Defendants contend the prosecutor erroneously argued she had
proven defendants’ guilt because her theory of the case was
22
“reasonable” and that trial counsel rendered ineffective assistance
23 by failing to object.
24 A. Background
25 During closing argument, the prosecutor urged the jury to evaluate
the circumstantial evidence through the prism of reasonableness
26 and predicted “when you do that, you are going to find that the only
reasonable conclusion, based off what was presented in this
27
courtroom . . . is that Mr. Johnson committed first-degree murder
28 and Mr. Gutierrez aided and abetted him in that . . . murder.”
1 The prosecutor described Johnson’s response upon seeing the
Acura: he “pulls out the gun . . . gets into Mr. Gutierrez’s car,
2
saying ‘Go get them.’ Mr. Gutierrez then drives in a very
aggressive fashion in order to catch up, . . . , high rate of speed,
3
wrong side of the road. What’s the reasonable inference? That
4 they were having a conversation in that vehicle about what was
happening and what they needed to do and what was going to
5 happen and what was going on. [¶] Mr. Gutierrez just all of a
sudden decided that he was going to drive down the wrong side of
6
the road at a high rate of speed, go find out—or who’s in the Acura
7 with dark-tinted windows that you can’t see in. The Acura
windows never came down. You could not see who was in that car.
8 That’s not reasonable. You don't do that just to see who was in a
car.” (Italics added.)
9
During his closing, Johnson’s counsel acknowledged the prosecutor
10 was “right. You can use circumstantial evidence, and you can make
inferences. But you have to have some evidence upon which to
11
base it, and you have none. You have to decide based on what
12 evidence you have heard and through common sense.” Counsel
argued “within a second or two . . . is when . . . Johnson starts to
13 fire in self-defense. . . . And the reasonable circumstantial evidence
was that he fired more shots in the air because nothing was
14
damaged as he traveled along” the street. (Italics added.)
15
Referring to the circumstantial evidence jury instruction, Johnson’s
16 counsel argued: “If you can draw two reasonable conclusions from
the circumstantial evidence and one which points to innocence and
17 one of them points to guilt, you . . . are required to conclude that the
required intent was not proven. . . . [I]f you think this could have
18 happened and if it did, he was guilty; this could have happened and
if it did he was innocent, you have to [choose] the one that points
19
toward innocence. Unless you say that story is just not reasonable.
20 And I think it does all match up. All of the testimony that you
heard from the witnesses that I presented to you matches up with
21 the video evidence and common sense.” (Italics added.)
22 Gutierrez’s attorney made a similar argument: she claimed the
prosecution evidence was “all circumstantial. . . . And this jury
23
instruction tells you that if there are two different theories, two
24 reasonable theories and one points to innocence, you need to find
Mr. Gutierrez not guilty. And there is.” (Italics added.)
25
On rebuttal, the prosecutor characterized defendants’ version of the
26 incident as “not reasonable.” (Italics added.) She read the
circumstantial evidence instruction to the jury and said defense
27
counsel had failed to tell the jury that “‘when considering
circumstantial evidence, you must accept only reasonable
28
1 conclusions and reject any that are unreasonable.’” (Italics added.)
The prosecutor continued, “They forgot to tell you that part because
2
their version is unreasonable.” Then the prosecutor asserted she
had proven her case beyond a reasonable doubt. (Italics added.)4
3
Defense counsel did not object during the prosecutor’s closing
4 argument.
5 The court instructed the jury on the prosecution’s burden to prove
the elements of the charged crimes beyond a reasonable doubt.
6 (CALCRIM No. 220.) It also instructed the jury on the use of
circumstantial evidence to establish intent. (CALCRIM No. 225.)
7
8 B. No Prosecutorial Error
9 A prosecutor commits prosecutorial error “insofar as her statements
could reasonably be interpreted as suggesting to the jury [the
10 prosecution] did not have the burden of proving every element of
the crimes charged beyond a reasonable doubt.” (People v. Hill
11 (1998) 17 Cal.4th 800, 831, 72 Cal. Rptr. 2d 656, 952 P.2d 673,
overruled on another ground in Price v. Superior Court (2001) 25
12
Cal.4th 1046, 1069, fn. 13, 108 Cal. Rptr. 2d 409, 25 P.3d 618.) It
13 “is error for the prosecutor to suggest that a ‘reasonable’ account of
the evidence satisfies the prosecutor’s burden of proof.” (People v.
14 Centeno (2014) 60 Cal.4th 659, 672, 180 Cal. Rptr. 3d 649, 338
P.3d 938 (Centeno).)
15
But it “is permissible” for a prosecutor “to argue that the jury may
16
reject impossible or unreasonable interpretations of the evidence
17 and to so characterize a defense theory.” (Centeno, supra, 60
Cal.4th at p. 672.) It is also “permissible to urge that a jury may be
18 convinced beyond a reasonable doubt even in the face of
conflicting, incomplete, or partially inaccurate accounts.
19 [Citations.] It is certainly proper to urge that the jury consider all
the evidence before it.” (Ibid.)
20
21 To determine whether a prosecutor has committed reversible error
“in this context, we examine (1) whether it was reasonably likely
22 that the prosecutor’s statements misled the jury on reasonable doubt
and (2) whether there is ‘a reasonable probability that the
23 prosecutor’s argument caused one or more jurors to convict
defendant based on a lesser standard than proof beyond a
24
reasonable doubt.’” (People v. Johnsen (2021) 10 Cal.5th 1116,
25 1165-1166, 274 Cal. Rptr. 3d 599, 480 P.3d 2 (Johnsen).) “‘In
conducting this inquiry, we “do not lightly infer” that the jury drew
26 the most damaging rather than the least damaging meaning from the
prosecutor’s statements.’” (Centeno, supra, 60 Cal.4th at p. 667.)
27
28 4 [Despite the indicator, no italics exist on this line in the original document.]
1 Here, the prosecutor argued circumstantial evidence—and the
reasonable inferences therefrom—established defendants’ guilt.
2
She argued the relative reasonableness of the parties’ competing
versions of the incident and characterized defendants’ version as
3
“not reasonable.” (Italics added.) Then, after reading the
4 circumstantial evidence instruction, the prosecutor reminded the
jury that it “must accept only reasonable conclusions and reject any
5 that are unreasonable.’” (Italics added.) The prosecutor did not,
however, link the reasonableness of the prosecution theory to the
6
reasonable doubt standard. Nothing in the prosecutor’s closing
7 argument “lessened the prosecution’s burden of proof.” (People v.
Romero (2008) 44 Cal.4th 386, 416, 79 Cal. Rptr. 3d 334, 187 P.3d
8 56.)
9 Defendants’ reliance on Centeno, supra, 60 Cal.4th 659, is
unavailing. There, prosecutor told the jury: “‘[Y]our decision has .
10 . . to be a reasonable account. . . . [Y]ou need to look at the entire
picture, not one piece of evidence, not one witness . . . to determine
11
if the case has been proven beyond a reasonable doubt.’” (Id. at p.
12 666.) Then the prosecutor compared the prosecution and defense
evidence and asked the jury, “‘Is it reasonable to believe that the
13 defendant is being set-up . . . or [that] he[’s] good for it? That is
what is reasonable. He’s good for it.’” (Ibid., italics omitted.) Our
14
high court held this argument conflated reasonable inferences from
the evidence with the prosecution’s obligation to prove guilt beyond
15
reasonable doubt, impermissibly leaving the jury “with the
16 impression that so long as her interpretation of the evidence was
reasonable,” the prosecution had met its burden. (Id. at pp. 671-
17 672.)
18 Here—and unlike Centeno—the prosecutor did not suggest the jury
could find defendant guilty based on a “reasonable” account of the
19
evidence. (Centeno, supra, 60 Cal.4th at p. 673.) Consistent with
20 CALCRIM No. 225, the prosecutor urged the jury to “‘accept the
reasonable and reject the unreasonable’” in evaluating the
21 circumstantial evidence before it. (Centeno, at p. 673.) A
reasonable juror under the circumstances, having been instructed by
22 the court that defendants must be acquitted unless the prosecutor
proved the charge beyond a reasonable doubt, would have
23
understood that the prosecutor was arguing that the prosecution
24 inferences from the evidence were correct, but that it remained the
jury’s task to decide whether that evidence established each element
25 of the crime beyond a reasonable doubt.
26 In their reply brief, defendants cite Johnsen, supra, 10 Cal.5th 1116
and People v. Cowan (2017) 8 Cal.App.5th 1152, 214 Cal. Rptr. 3d
27
576 (Cowan), but those cases do not assist them. In Johnsen, the
28 prosecutor erroneously told the jury “the reasonable doubt standard
1 requires jurors ‘to point to something in the evidence that makes
them have that doubt’” and “misstated the law by advising the jury
2
that in evaluating whether a perceived doubt is reasonable, a ‘juror
should be able to convince his or her fellow jurors that the doubt is
3
reasonable.’” (Johnsen, at p. 1166.) In Cowan, the prosecutor
4 misinformed the jury that the “presumption of innocence is ‘gone’
prior to the jury’s deliberation” (Cowan, at p. 1159) and
5 erroneously defined the reasonable doubt standard as requiring the
jury to be “firmly convince[d] that guilt is the only reasonable
6
interpretation of the evidence.” (Id. at p. 1161.)
7
This case bears no resemblance to Johnsen and Cowan. Here, the
8 prosecutor did not mischaracterize the reasonable doubt standard or
misstate the law. Instead, the prosecutor permissibly urged the jury
9 to reject unreasonable conclusions when considering circumstantial
evidence. (Centeno, supra, 60 Cal.4th at p. 672; CALCRIM No.
10 225.)
11
In sum, the prosecutor did not err and, as a result, there was no
12 reason for defense counsel to object. (People v. Lucero (2000) 23
Cal.4th 692, 732, 97 Cal. Rptr. 2d 871, 3 P.3d 248.) Defendants’
13 ineffective assistance of counsel claim fails.
14 C. No Prejudice
15 Assuming the prosecutor erred, and that defense counsel was
ineffective for failing to object, defendants’ claim fails because they
16
cannot show prejudice, e.g., “a reasonable probability that, but for
17 counsel’s unprofessional errors, the result of the proceeding would
have been different.” (Strickland v. Washington (1984) 466 U.S.
18 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674.) “The likelihood of a
different result must be substantial, not just conceivable.”
19 (Harrington v. Richter (2011) 562 U.S. 86, 112, 131 S. Ct. 770, 178
L. Ed. 2d 624.) “‘Surmounting Strickland’s high bar is never an
20
easy task.’” (Id. at p. 105.) Defendants have not satisfied their
21 burden.
22 The court instructed the jury on the presumption of innocence,
reasonable doubt, and the prosecution’s burden of proof. It also
23 directed the jury to follow these instructions in the event of
conflicting statements. Jurors are presumed to follow the court’s
24
instructions. (People v. Holt (1997) 15 Cal.4th 619, 662, 63 Cal.
25 Rptr. 2d 782, 937 P.2d 213.) As recited above, the evidence of
defendants’ guilt was strong and the evidence supporting the
26 defense theories was comparatively weak. Accordingly, it is not
reasonably probable the result would have been different had
27 defense counsel objected to the prosecutor’s closing argument.
(Johnsen, supra, 10 Cal.5th at p. 1167 [no prejudice from defense
28
1 counsel’s failure to object to prosecutor’s alleged error in stating
reasonable doubt standard].)
2
3 Gutierrez, ECF No. 22-26 at 12-18. The California Supreme Court rejected petitioners’ claims in
4 a summary denial. Gutierrez, ECF No. 22-30 at 2. Petitioner Gutierrez raised the claim again in
5 a state habeas petition, which also received summary denials. Gutierrez, ECF No. 22-23 at 4,
6 ECF Nos. 22-27 at 2, 22-31 at 2.
7 “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth
8 Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the
9 ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.” Strickland v.
10 Washington, 466 U.S. 668, 685 (1984) (quoting Adams v. United States ex rel. McCann, 317 U.S.
11 269, 275 (1942)). Petitioner must establish two components to succeed on a claim of ineffective
12 assistance of counsel: (1) unreasonably deficient performance, meaning that trial counsel’s
13 performance “fell below an objective standard of reasonableness;” and (2) prejudice, meaning
14 that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
15 the proceeding would have been different.” Strickland at 688. “The essence of an ineffective-
16 assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between
17 defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.”
18 Kimmelman v. Morrison, 477 U.S. 365, 374 (1986).
19 There was, as the state court found, no prejudice, and, thus, relief on this claim is
20 foreclosed. The appellate court’s application of Strickland is entitled to deference from this court,
21 and a finding to the contrary is warranted only if the state court’s decision was unreasonable. See
22 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“The question is not whether a federal court
23 believes the state court’s determination under the Strickland standard was incorrect but whether
24 that determination was unreasonable—a substantially higher threshold.”) (internal quotation
25 marks omitted). A state court’s decision is unreasonable only if no reasonable jurist could agree
26 with it. See Chavez v. Brnovich, 42 F.4th 1091, 1101 (9th Cir. 2022) (“To conclude that the state
27 court decision was objectively unreasonable, we must find that no fairminded jurist could agree
28 with the state court’s decision.”). Here, the appellate court reasonably determined that, even if
1 the prosecutor erred, petitioners were not prejudiced because the jurors were properly instructed
2 as to the prosecution’s burden, reasonable doubt, and the presumption of innocence. Gutierrez,
3 ECF No. 22-1 at 185. As the state court noted, jurors are presumed to follow their instructions.
4 Penry v. Johnson, 532 U.S. 782, 799 (2001). A fairminded jurist could agree with this holding
5 and petitioners are entitled to no relief on this claim.
6 b. Johnson’s Theory of Self Defense
7 Petitioner Johnson contends that there was insufficient evidence to prove, beyond a
8 reasonable doubt, that he did not act in self-defense and to sustain a homicide or murder
9 conviction against him. Johnson, ECF No. 1 at 31-32. The state court of appeal rejected this
10 claim:
11 Substantial Evidence Supports the Jury’s Implied Finding that
Johnson Did Not Act in Self-Defense
12
13 “When a defendant challenges the sufficiency of the evidence for a
jury finding, we review the entire record in the light most favorable
14 to the judgment of the trial court. We evaluate whether substantial
evidence, defined as reasonable and credible evidence of solid
15 value, has been disclosed, permitting the trier of fact to find guilt
beyond a reasonable doubt. [Citation.] “‘The standard of review is
16
the same in cases in which the prosecution relies mainly on
17 circumstantial evidence.”’” (People v. Vargas (2020) 9 Cal.5th
793, 820, 265 Cal. Rptr. 3d 604, 468 P.3d 1121.) Under this
18 standard of review, reversal is not warranted “unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence
19 to support’” the conviction. (People v. Bolin (1998) 18 Cal.4th 297,
331, 75 Cal. Rptr. 2d 412, 956 P.2d 374.)
20
When self-defense is at issue, the prosecution bears the burden of
21
proving beyond a reasonable doubt that the defendant acted without
22 justification. (People v. Rios (2000) 23 Cal.4th 450, 462, 97 Cal.
Rptr. 2d 512, 2 P.3d 1066; People v. Lloyd (2015) 236 Cal. App.
23 4th 49, 63, 186 Cal. Rptr. 3d 245.) Perfect self-defense—a
complete defense to murder—requires the defendant to have an
24
actual and objectively reasonable belief that bodily injury is about
25 to be inflicted on the defendant. (People v. Humphrey (1996) 13
Cal.4th 1073, 1082, 56 Cal. Rptr. 2d 142, 921 P.2d 1.) “The threat
26 of bodily injury must be imminent.” (People v. Minifie (1996) 13
Cal.4th 1055, 1064, 56 Cal. Rptr. 2d 133, 920 P.2d 1337.) “Fear of
27 future harm-no matter how great the fear and no matter how great
28
1 the likelihood of the harm-will not suffice.” (Humphrey, at p.
1082.)
2
Moreover, it “is well established that the ordinary self-defense
3
doctrine—applicable when a defendant reasonably believes that his
4 safety is endangered—may not be invoked by a defendant who,
through his own wrongful conduct (e.g., the initiation of a physical
5 assault or the commission of a felony), has created circumstances
under which his adversary’s attack . . . is legally justified.” (In re
6 Christian S. (1994) 7 Cal.4th 768, 773, fn. 1, 30 Cal. Rptr. 2d 33,
872 P.2d 574.)
7
8 Defendants contend the prosecution failed to prove beyond a
reasonable doubt that Johnson did not act in self-defense. But in
9 finding defendants guilty of second degree murder, the jury
impliedly found otherwise and substantial evidence supports that
10 finding. A neighbor testified Johnson seemed “adrenaline excited”
when he saw Hendricks and Cromwell emerge from the alley.
11
When Johnson saw the two men, he retrieved a gun and held it by
12 his side. Later, when Hendricks and Cromwell drove by, Johnson
got “more excited.” At no point did Johnson seem afraid. Johnson
13 yelled at Gutierrez to “‘get’” the men and to “‘follow’” their car.
He quickly got into the Impala. As the Impala sped away, Johnson
14 hung out of the window, holding a gun in his hand.
15
Hendricks testified a dark car pulled alongside the Acura. A man—
Johnson—was hanging out of the car’s window “shooting at
16
[him].” Hendricks heard enough shots being fired that he decided
17 to “shoot back.” Surveillance video footage showed the Impala
aggressively overtaking the Acura, pausing briefly during the
18 gunfight, and driving away. When interviewed by police, Johnson
gave no indication he feared imminent harm “that could be met
19
only through the use of deadly force.” (People v. Steskal (2021) 11
20 Cal.5th 332, *15.)
21 Considered together, this evidence easily supports a conclusion that
defendants sought out Hendricks and Cromwell and initiated the
22 confrontation that ended in Cromwell’s death. (People v. Steskal,
supra, 11 Cal.5th at *15 [circumstances of the crime indicated the
23 defendant was the aggressor, “not the other way around”]; People v.
Salazar (2016) 63 Cal.4th 214, 244, 202 Cal. Rptr. 3d 638, 371
24
P.3d 161 [ample evidence established the defendant initiated the
25 assault and supported jury’s rejection of his self-defense claim].)
This evidence also supports a reasonable inference that Johnson did
26 not fear imminent harm when he directed Gutierrez to go “‘get’”
the two men. (People v. Brady (2018) 22 Cal.App.5th 1008, 1018,
27
232 Cal. Rptr. 3d 220 [“there was sufficient evidence for the jury to
reject [the defendant’s] claim of self-defense based on a lack of
28
1 objective reasonableness”]; People v. Nguyen (2015) 61 Cal.4th
1015, 1044, 191 Cal. Rptr. 3d 182, 354 P.3d 90 [jury could
2
reasonably conclude the defendant “did not act on the basis of fear
alone but also on a desire to kill his rival”].)
3
4 Defendants’ argument to the contrary is premised on a recitation of
the evidence favoring them. This strategy—an improper request to
5 reweigh the evidence and reevaluate the credibility of witnesses—is
unavailing. It “‘is the jury, not the appellate court, which must be
6 convinced of the defendant’s guilt beyond a reasonable doubt.’”
[Citations.] Where the circumstances reasonably justify the trier of
7
fact's findings, a reviewing court’s conclusion the circumstances
8 might also reasonably be reconciled with a contrary finding does
not warrant the judgment’s reversal.” (People v. Zamudio (2008)
9 43 Cal.4th 327, 357-358, 75 Cal. Rptr. 3d 289, 181 P.3d 105,)
Here, the evidence supports the jury's rejection of Johnson's self-
10 defense claim.5
11
12 Johnson, ECF No. 20-26 at 8-10. The California Supreme Court later rejected this claim in a
13 summary denial. Johnson, ECF No. 20-30 at 2.
14 “A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging
15 the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.”
16 Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). He must show that, after viewing the
17 evidence in the light most favorable to the prosecution, “no rational trier of fact could find guilt
18 beyond a reasonable doubt[.]” Jackson v. Virginia, 443 U.S. 307, 317 (1979). In addition, the
19 state court’s decision applying Jackson is entitled to a high level of deference and this court may
20 find in petitioner’s favor only if it concludes that the state court’s application was unreasonable.
21 Juan H., 408 F.3d. at 1274-75. Here, as the state court reasonably concluded, there was
22 substantial evidence contradicting a theory of self-defense. Witness testimony indicated that
23 Johnson urged Gutierrez to follow the victim’s car and then prepared to fire at them from the
24 passenger side window. Johnson, ECF No. 20-10 at 139-40, 189-90. It bears reiterating that it is
25 not for this court to reweigh the evidence; that was the jury’s task. The only question is whether,
26
27 5 [footnote 4 in original text] Having reached this result, we need not address Gutierrez’s
argument that he is not liable for murder as an aider and abettor because Johnson acted in self-
28 defense.
1 in a light most favorable to the prosecution, a reasonable finder of fact could find that, beyond a
2 reasonable doubt, Johnson did not act in self-defense. That question is answered in the
3 affirmative and this claim should be rejected. In so doing and, as the state appellate court did
4 before, I conclude that this finding also precludes Gutierrez’s argument that he is not liable as an
5 aider and abettor because Johnson acted in self-defense.
6 c. Sufficient Evidence to Sustain Gutierrez’s Conviction
7 Separately, Gutierrez argues that, even if there was sufficient evidence to find that
8 Johnson did not act in self-defense, there was still not enough evidence to convict him aiding and
9 abetting the homicide. Gutierrez, ECF No. 1 at 33-34. The state appellate court rejected this
10 claim:
11 Gutierrez claims he was unaware Johnson intended to kill
Cromwell and, as a result, insufficient evidence establishes he aided
12
and abetted the murder.
13
“Second degree murder is the unlawful killing of a human being
14 with malice aforethought but without the additional elements, such
as willfulness, premeditation, and deliberation, that would support a
15 conviction of first degree murder.” (People v. Knoller (2007) 41
Cal.4th 139, 151, 59 Cal. Rptr. 3d 157, 158 P.3d 731.) Malice
16
“‘may be either express or implied. It is express when there is
17 manifested a deliberate intention to take away the life of a fellow
creature. It is implied, when no considerable provocation appears,
18 or when the circumstances attending the killing show an abandoned
and malignant heart.’” (Id. at p. 151.)
19
“[A] person aids and abets the commission of a crime when he . . . ,
20
acting with (1) knowledge of the unlawful purpose of the
perpetrator; and (2) the intent or purpose of committing,
21
encouraging, or facilitating the commission of the offense, (3) by
22 act or advice aids, promotes, encourages or instigates, the
commission of the crime.” (People v. Beeman (1984) 35 Cal.3d
23 547, 561, 199 Cal. Rptr. 60, 674 P.2d 1318.) In a murder
prosecution, this means “the aider and abettor must know and share
24
the murderous intent of the actual perpetrator.” (People v. McCoy
25 (2001) 25 Cal.4th 1111, 1118, 108 Cal. Rptr. 2d 188, 24 P.3d
1210.) But “the aider and abettor need not have advance
26 knowledge of the crime or the perpetrator’s intent. ‘Aiding and
abetting may be committed “on the spur of the moment,” that is, as
27 instantaneously as the criminal act itself.’” (People v. Frandsen
(2019) 33 Cal. App. 5th 1126, 1148, 245 Cal. Rptr. 3d 658.)
28
1 Here, substantial evidence supports a reasonable inference that
Gutierrez—with knowledge of Johnson’s murderous intent—
2
offered support and encouragement to Johnson, thereby aiding and
abetting the murder. When Johnson saw the Acura, he got into
3
Gutierrez’s car. Armed with a gun, Johnson yelled at Gutierrez to
4 “‘follow’” the car and to “‘get’” Hendricks and Cromwell.
Gutierrez followed Johnson’s directions: he chased after the Acura
5 and pulled up alongside it. Before driving away, Gutierrez waited
while Johnson shot at the Acura. Nothing suggests Gutierrez was
6
surprised by, or afraid to interfere with, Johnson’s actions. (People
7 v. Campbell (1994) 25 Cal. App. 4th 402, 409, 30 Cal. Rptr. 2d
525.) After the shootout, Gutierrez discarded his own weapon and
8 hid. (People v. Hoang (2006) 145 Cal. App. 4th 264, 270, 51 Cal.
Rptr. 3d 509 [the defendant’s actions after the crime were
9 consistent with aiding and abetting].) Together, this evidence
adequately demonstrates Gutierrez’s “awareness and complicity in
10
[the] killing.” (People v. Quiroz (2013) 215 Cal. App. 4th 65, 76,
11 155 Cal. Rptr. 3d 200.)
12 Gutierrez, ECF No. 22-26 at 11-12. The California Supreme Court rejected this claim in a
13 summary denial. Gutierrez, ECF No. 22-27 at 2.
14 The same Jackson standard set forth in the previous claim applies here and, as before,
15 there was sufficient evidence to uphold petitioner’s conviction for aiding and abetting. As the
16 state court described, testimony indicated that Gutierrez followed Johnson’s directives to follow
17 and ‘get’ the victim’s car and offered driving aid to the gunman while he fired at the other
18 vehicle. Gutierrez, ECF No. 22-10 at 139-42, 189-92. This testimony was sufficient evidence for
19 a rational finder of fact to determine that Gutierrez aided and abetted Johnson in the murder.
20 Accordingly, it is ORDERED that the Clerk of Court shall file a copy of these findings
21 and recommendations in each of the cases set out in the caption of this order and
22 recommendations.
23 Further, it is RECOMMENDED that both habeas petitions in the above captioned cases be
24 DENIED.
25 These findings and recommendations are submitted to the United States District Judge
26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days of
27 service of these findings and recommendations, any party may file written objections with the
28 court and serve a copy on all parties. Any such document should be captioned “Objections to
1 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed
2 | within fourteen days of service of the objections. The parties are advised that failure to file
3 | objections within the specified time may waive the right to appeal the District Court’s order. See
4 | Turner vy. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir.
5 | 1991).
6
7 | SO ORDERED.
8 { _-
g | Dated: _July 29, 2025 _ pene Wns
JEREMY D,. PETERSON
10 UNITED STATES MAGISTRATE JUDGE
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