Petition for Writ of Certiorari — Saul Cervantes, Petitioner v. M. D. Biter, Warden

Supreme Court briefMar 19, 2020

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APPENDIX

Case: 19-55168, 12/20/2019, ID: 11540327, DktEntry: 2, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

DEC 20 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SAUL CERVANTES,

Petitioner-Appellant,

M. D. BITER, Warden,

No.

19-55168

D.C. No. 2:13-cv-04880-R-SS

Central District of California,

Los Angeles

ORDER

Respondent-Appellee.

Before:

TALLMAN and NGUYEN, Circuit Judges.

The request for a certificate of appealability is denied because appellant has

not shown that “jurists of reason would find it debatable whether the petition states

a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2);

Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012); Miller-El v. Cockrell, 537 U.S.

322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 1 of 30 Page ID #:1700

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SAUL CERVANTES,

Petitioner,

Case No. CV 13-4880 R (SS)

REPORT AND RECOMMENDATION OF

M.D. BITER, Warden,

UNITED STATES MAGISTRATE JUDGE

Respondent.

This Report and Recommendation is submitted to the Honorable

Manuel L. Real, United States District Judge, pursuant to 28 U.S.C.

§ 636 and General Order 05-07 of the United States District Court

for the Central District of California.

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 2 of 30 Page ID #:1701

INTRODUCTION

Effective

June

26,

2013,1

Saul

Cervantes

(“Petitioner”),

proceeding pro se, filed a Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254 (“Petition”).

October 16, 2013, Respondent filed a Motion to Dismiss the Petition

(“Motion”) as untimely, and Petitioner filed an Opposition on

January 14, 2014.

granted the Motion and entered Judgment denying the Petition and

dismissing the action with prejudice.

(Dkt. Nos. 13, 18).

(Dkt. No. 1).

On June 10, 2014, the Court

(Dkt. Nos. 19-20, 25-26).

Petitioner filed a Notice of Appeal to the Ninth Circuit Court

unopposed motion for remand to this court to “consider what effect,

if any, the Supreme Court’s decision in Montgomery v. Louisiana,

136 S. Ct. 718 (2016) has on the timeliness” of the Petition. (Dkt.

Nos. 28, 35).

effect on the Petition’s timeliness, and Petitioner also argued he

is entitled to an evidentiary hearing to address his purported

actual innocence.

latter issue in his Reply, arguing he is actually innocent and

entitled to an equitable exception to AEDPA’s limitation period.

Appeals,

which

December

12,

2016,

granted

Petitioner’s

Following remand, the parties briefed Montgomery’s

(Dkt. Nos. 40-41).

Petitioner expanded on the

“When a prisoner gives prison authorities a habeas petition or

other pleading to mail to court, [pursuant to the mailbox rule,]

the court deems the petition constructively ‘filed’ on the date it

is signed[,]” Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir.

2010); Houston v. Lack, 487 U.S. 266, 276 (1988), which in this

case was June 26, 2013.

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 3 of 30 Page ID #:1702

(Dkt. No. 61).

addressing Petitioner’s actual innocence argument.

For the reasons discussed below, it is recommended that the Motion

be GRANTED and this action be DISMISSED as untimely.

On June 12, 2018, Respondent filed a Sur-Reply

(Dkt. No. 63).

II.

PRIOR PROCEEDINGS

On May 12, 2003, a Los Angeles County Superior Court jury

convicted Petitioner of three counts of willful, deliberate, and

premeditated attempted murder in violation of California Penal Code

(“P.C.”) §§ 664/187(a) (counts 1-3) and also found it to be true

that Petitioner used a firearm within the meaning of P.C. §

12022.53(b) (counts 1-3), personally and intentionally discharged

a firearm within the meaning of P.C. § 12022.53(c) (count 1), and

personally and intentionally discharged a firearm causing great

bodily injury within the meaning of P.C. § 12022.53(d) (count 1).

(Clerk’s Transcript (“CT”) 202-04, 207-09; Reporter’s Transcript

(“RT”) 1205-11).

Petitioner to three consecutive terms of life imprisonment with

the possibility of parole with an additional twenty-five years to

life for the P.C. § 12022.53(d) enhancement and an additional 10

years for the count 2 P.C. § 12022.53(b) enhancement.

RT 1804-06).

On July 9, 2003, the trial court sentenced

(CT 227-31;

Petitioner

appealed

his

conviction

and

sentence

the

California Court of Appeal (2d App. Dist., Div. 8), which affirmed

the judgment in an unpublished opinion filed December 9, 2004.

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 4 of 30 Page ID #:1703

(Lodgments 3-9).

the California Supreme Court.

Supreme Court denied the petition “without prejudice to any relief

to which [Petitioner] might be entitled after this court determines

in People v. Black, S126182, and People v. Towne, S125677, the

effect

California law.”2

Petitioner then filed a petition for review in

[Blakely

On March 2, 2005, the California

Washington,

542

U.S.

296

(2004),]

(Lodgments 10-11).

On or around May 7, 2007, Petitioner filed a “Request for

Order for Permission to File a Late Petition for Writ of Habeas

Corpus” in this Court, which denied the request without prejudice

on May 11, 2007. (See Cervantes v. Warden, United States District

Court for the Central District of California case no. 07-2982 R

(MLG)).

On or around November 5, 2012, approximately five years later,

Petitioner filed a habeas corpus petition in the Los Angeles County

Superior Court, which denied the petition on December 14, 2012.

(Lodgments 12-13; Supplemental Lodgment (“Supp. Lodgment”) 1, Exh.

A).

petition in the California Court of Appeal (2d App. Dist., Div.

8), which denied the petition on February 14, 2013.

Supp. Lodgments 1-2).

Petitioner filed habeas corpus petitions in the California Supreme

Effective January 15, 2013, Petitioner filed a habeas corpus

(Lodgment 14;

Effective March 12, 2013, and April 2, 2013,

People v. Black, 35 Cal. 4th 1238 (2005) (“Black I”), was decided

on June 20, 2005, but on February 20, 2007, the Supreme Court

granted a petition for writ of certiorari and vacated Black I in

light of Cunningham v. California, 549 U.S. 270 (2007).

Thereafter, the California Supreme Court issued a new decision,

People v. Black, 41 Cal. 4th 799 (2007), on July 19, 2007.

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 5 of 30 Page ID #:1704

Court, which denied the petitions on May 22, 2013.

18).

(Lodgments 15-

III.

PETITIONER’S CLAIMS

The Petition raises nine grounds for federal habeas relief.

In Ground One, Petitioner contends there was insufficient evidence

to support his attempted murder convictions.

A at 8-18). In Ground Two, Petitioner claims there was insufficient

evidence to support the personal firearm use findings.

at 5, Exh. A at 18-20).

was denied due process of law when an in-court identification was

tainted by an unnecessarily suggestive and/or inherently unfair

pretrial identification procedure.

20-23).

him of due process of law because it did not instruct the jury that

it must find a specific intent to kill each of the individual

victims.

Petitioner claims the imposition of consecutive sentences based on

facts not found by the jury on proof beyond a reasonable doubt

deprived him of due process and a jury trial.

A at 25-26).

constitutes cruel and unusual punishment because he committed the

crimes when he was a juvenile and he would not be eligible for

parole within his expected lifespan.3

(Petition at 5, Exh.

(Petition

In Ground Three, Petitioner asserts he

(Petition at 5-6, Exh. A at

In Ground Four, Petitioner alleges CALJIC 8.66 deprived

(Petition at 6, Exh. A at 23-25).

In Ground Five,

(Petition at 6, Exh.

In Ground Six, Petitioner contends his sentence

(Petition at 6A, Exh. B).

Petitioner cites People v. Caballero, 55 Cal. 4th 262 (2012), in

support of his Eighth Amendment claim. (Petition at 6A, Exh. B).

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In Ground Seven, Petitioner asserts his trial and appellate counsel

provided

Petitioner claims he was denied due process of law, there was

insufficient evidence to convict him, and he was denied the right

to a jury trial.

Petitioner asserts that he is actually innocent and there was

insufficient evidence to convict him.

ineffective

assistance.

(Id.).

(Petition at 6A-B, Exh. B).

Ground

Eight,

In Ground Nine,

(Petition at 6B, Exh. B).

IV.

DISCUSSION

In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court

held that “mandatory life without parole [sentences] for those

under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on ‘cruel and unusual punishments.’”4

Id.

In Caballero, the California Supreme Court, applying Graham v.

Florida, 560 U.S. 48 (2010), held that “sentencing a juvenile

offender for a nonhomicide offense to a term of years with a parole

eligibility date that falls outside the juvenile offender’s natural

life expectancy constitutes cruel and unusual punishment in

violation of the Eighth Amendment.” Caballero, 55 Cal. 4th at 268.

In his brief following remand, Petitioner described his Eighth

Amendment claim as challenging “his consecutive life sentences

imposed for crimes committed as a juvenile. . . .” (Dkt. No. 40

at 7).

Prior to Miller, the Supreme Court held in Graham that “[t]he

Constitution prohibits the imposition of a life without parole

sentence on a juvenile offender who did not commit homicide” and

further concluded that a “State need not guarantee the offender

eventual release, but if it imposes a sentence of life it must

provide him or her with some realistic opportunity to obtain

release before the end of that term.”

Graham, 560 U.S. at 82.

“Graham broke new ground because the Supreme Court applied a

categorical classification to a term-of-years sentence for the

first time.” Moore v. Biter, 725 F.3d 1184, 1188 (9th Cir. 2013).

“All prior cases under the categorical approach involved the death

penalty.” Id. at 1188-89. For instance, in Roper v. Simmons, 543

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 7 of 30 Page ID #:1706

at 465.

Supreme Court held that “Miller announced a substantive rule that

is retroactive in cases on collateral review.”

Ninth Circuit remanded this matter so the Court could determine

what effect, if any, Montgomery has on the Petition’s timeliness.

(Dkt. No. 35).

In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the

Id. at 732-36.

The

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) “establishes a 1-year period of limitation for a state

prisoner to file a federal application for a writ of habeas corpus.”

Wall v. Kholi, 562 U.S. 545, 550 (2011); 28 U.S.C. § 2244(d)(1).

Specifically, state prisoners must file their habeas petitions

within one year of the latest of the following dates:

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time

for seeking such review;

(B)

application created by State action in violation of the

Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State

action;

the

date

which

the

impediment

filing

U.S. 551, 578 (2005), the Supreme Court held that “[t]he Eighth

and Fourteenth Amendments forbid imposition of the death penalty

on offenders who were under the age of 18 when their crimes were

committed.” Id. at 578. In Moore, the Ninth Circuit held that

“Graham established a new rule of law that is retroactive on

collateral review.” Moore, 725 F.3d at 1190-91.

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 8 of 30 Page ID #:1707

was initially recognized by the Supreme Court, if the

right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of the claim

or claims presented could have been discovered through

the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D).

Petitioner asserts that, in light of Montgomery, his Petition

was timely filed under Section 2244(d)(1)(C).

11).

applies on a claim-by-claim basis.

1181 (9th Cir. 2014) (per curiam); Mardesich v. Cate, 668 F.3d

1164, 1166 (9th Cir. 2012); see also Pace v. DiGuglielmo, 544 U.S.

408, 416 n.6 (2005) (Section 2244(d)(1) “provides one means of

calculating the limitation with regard to the ‘application’ as a

whole, § 2244(d)(1)(A) (date of final judgment), but three others

that

require

claim-by-claim

(governmental

interference);

retroactive);

Accordingly, even if applicable, Section 2244(d)(1)(C) would only

delay the start of the limitations period for Ground Six – the only

Petitioner’s assertion is incorrect.

(Dkt. No. 40 at 7-

Section 2244(d)(1)(C)

Butler v. Long, 752 F.3d 1177,

consideration,

2244(d)(1)(C)

(new

2244(d)(1)(D)

(new

factual

2244(d)(1)(B)

right

made

predicate).”).

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 9 of 30 Page ID #:1708

ground raising an Eighth Amendment claim.

(clarifying that Petitioner intends Ground Six to raise a Miller

claim)).

(See Dkt. No. 40 at 9

Even If Timely, Ground Six Is Without Merit

Applying

Section

2244(d)(1)(C)

Ground

Six,

Petitioner

argues that “the date Miller was decided started the one-year

federal clock,”5 and Respondent concedes that Ground Six appears

timely.

Respondent

rejected because Miller applies to crimes committed by juveniles

and Petitioner was not a juvenile when he committed the crimes for

which he was convicted.6

that Ground Six is timely, see Cooper v. Calderon, 274 F.3d 1270,

1275 n.3 (9th Cir. 2001) (per curiam); Van Buskirk v. Baldwin, 265

F.3d 1080, 1083 (9th Cir. 2001), Respondent is correct that Miller

is inapplicable to Petitioner.7

(Dkt. No. 40 at 7-11; Dkt. No. 41 at 3-6).

also

contends

that

Ground

Six

should

(Dkt. No. 41 at 6).

However,

summarily

Assuming arguendo

Miller was decided June 25, 2012, and the pending Petition was

filed effective June 26, 2013. However, if the limitations period

for Ground Six began running when Miller was decided, Petitioner

would be entitled to sufficient statutory tolling to render Ground

Six timely. See 28 U.S.C. § 2244(d)(2).

Petitioner does not address this argument, stating he has

“nothing further to add” because the Respondent concedes Section

2244(d)(1)(C) is timely. (Dkt. No. 61 at 4 n.1).

Because Section 2244(d)(1)(C) applies to the “right asserted”

and Petitioner asserts a Miller claim, Ground Six could arguably

be timely even though Miller is inapplicable on the merits. See

Young v. Biter, 2016 WL 4775465, *2 n.2 (C.D. Cal.) (“Respondent

asserts that Miller does not apply to Petitioner’s claims because

he was not sentenced to life without the possibility of parole and

thus Petitioner is not entitled to the later commencement of the

limitations period under Section 2244(d)(1)(C). However, Section

A 10

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 10 of 30 Page ID #:1709

As discussed above, Miller addresses the Eighth Amendment

rights of juveniles.

‘foundation stone’ for Miller’s analysis was [the Supreme] Court’s

line of precedent holding certain punishments disproportionate when

applied to juveniles.

U.S. 48 (2010)], which held that the Eighth Amendment bars life

without parole for juvenile nonhomicide offenders, and [Roper v.

Simmons, 543 U.S. 551 (2005)], which held that the Eighth Amendment

prohibits capital punishment for those under the age of 18 at the

time of their crimes.”); Miller, 567 U.S. at 471 (“[C]hildren are

constitutionally

sentencing.”).

Petitioner was convicted occurred on July 21, 2002 (see Lodgment 9

at 2; Dkt. No. 40 at 6), and Petitioner was born on April 8, 1984.

(See CT 235).

juvenile – when the crimes occurred, and Petitioner cannot maintain

an Eighth Amendment Miller claim.

F.3d 1347, 1356 (9th Cir. 2014) (“Miller expressly turned on two

See Montgomery, 136 S. Ct. at 732 (“The

Those cases include [Graham v. Florida, 560

different

from

adults

for

purposes

Here, it is undisputed that the crimes for which

Therefore, Petitioner was 18 years old – and not a

See United States v. Shill, 740

2244(d)(1)(C) applies when the right ‘asserted’ by a petitioner is

recognized by the Supreme Court, and the right ‘asserted’ by

Petitioner is that Miller renders his sentence unconstitutional.”

(citation omitted)), report and recommendation accepted by, 2016

WL 4770027 (C.D. Cal. 2016); Swokla v. Paramo, 2015 WL 3562574, *2

(N.D. Cal. 2015) (“Petitioner was 19 years and 7 months old when

he committed the crimes. Respondent is correct that by its own

terms, Miller does not establish that petitioner’s sentence

violated his Eighth Amendment rights.

While this does not mean

that Section 2244(d)(1)(C) does not apply, because Section

2244(d)(1)(C) applies when the right ‘asserted’ by the petitioner

is recognized by the Supreme Court and the right ‘asserted’ by

petitioner is that Miller renders his sentence unconstitutional,

it does mean something far more damaging to petitioner: that even

if his Miller-based claim were timely, . . . it is without

merit.”).

A 11

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 11 of 30 Page ID #:1710

factors not present here: a juvenile offender and a sentence of

life in prison without parole.”); United States v. Edwards, 734

F.3d 850, 853 (9th Cir. 2013) (“The Supreme Court’s recent Eighth

Amendment

conduct” is inapposite since “[t]he conduct for which Edwards is

being punished occurred while he was an adult, not a juvenile as

in Roper, Graham, and Miller.”); United States v. Marshall, 736

F.3d 492, 500 (6th Cir. 2013) (“An immature adult is not a juvenile.

Regardless of the source of the immaturity, an immature adult is

still an adult.

qualify

juveniles.”); Nampula v. McDowell, 2017 WL 3224815, *14 & n.13

(C.D. Cal.) (Graham and Miller were inapposite when “Petitioner

was over the age of 18 when he committed the attempted murders”

even though Petitioner “had just turned 18 years old” and “‘had

never before been in [this] type of trouble[.]’”), report and

recommendation accepted by, 2017 WL 3224462 (C.D. Cal. 2017);

Mendez v. Sherman, 2016 WL 2753773, *15 (E.D. Cal. 2016) (“It is

true that Eighth Amendment jurisprudence with respect to life

sentences

However, these cases do not dictate the result in this case because

petitioner was not a juvenile at the time he committed his crimes”

as he had turned 18 less than four months before he committed the

crimes

timeliness, the state court’s rejection of Ground Six was not

jurisprudence

for

criminal

punishment

for

juvenile

Because Marshall is not a juvenile, he does not

the

Eighth

juveniles

issue).

Amendment

protections

different

Accordingly,

even

than

that

assuming

accorded

for

adults.

Ground

A 12

Six’s

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 12 of 30 Page ID #:1711

contrary to, or an unreasonable application of, clearly established

federal law.8

Having so concluded, the Court applies Section 2244(d)(1)(A)

to consider the timeliness of Grounds One through Five and Seven

through Nine.9

The Remainder Of The Petition Is Facially Untimely

“AEDPA requires a state prisoner to file a federal habeas

petition pursuant to 28 U.S.C. § 2254 within one year of the date

on which his conviction becomes final on direct review, unless the

petitioner qualifies for statutory or equitable tolling.”

v. Miller, 830 F.3d 864, 868 (9th Cir. 2016) (en banc); 28 U.S.C.

Petitioner’s petition for review on March 2, 2005.

2244(d)(1)(A).

Here,

the

California

Supreme

Court

Curiel

denied

After the

The Los Angeles County Superior Court’s denial of Petitioner’s

habeas corpus petition provided the last reasoned decision

addressing Ground Six. (see Lodgments 12-16; Supp. Lodgments 12); Curiel v. Miller, 830 F.3d 864, 869 (9th Cir. 2016) (en banc)

(“When more than one state court has adjudicated a claim, the

federal court analyzes the last ‘reasoned’ state court decision.”).

The Superior Court determined that “[o]n balance, considering that

[Petitioner] was over 18 years old at the time of the offense, that

he may be eligible for parole within his lifetime and that he was

convicted of three extremely serious offenses, . . . there is no

violation of the Eighth Amendment ban on cruel and unusual

punishment.” (Supp. Lodgment 12, Exh. A).

“Although § 2244(d)(1) sets forth three alternate possible

starting dates [other than § 2244(d)(1)(A)] for the commencement

of the running of the statute of limitations, [Petitioner] does

not argue that [§ 2244(d)(1)(B) or (D)] apply in this case[,]”

Miranda v. Castro, 292 F.3d 1063, 1065 n.1 (9th Cir. 2002), and,

as explained above, the claim to which § 2244(d)(1)(C) may apply

is meritless.

A 13

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California Supreme Court denied review, Petitioner had the option

of seeking a writ of certiorari from the United States Supreme

Court.

28 U.S.C. § 1257.

A writ of certiorari must be sought

within

ninety

the

review.

United States, Rule 13.

certiorari in the Supreme Court, the direct review process is over

at the end of the ninety-day period.

F.3d 1146, 1147 (9th Cir. 2000) (en banc); Bowen v. Roe, 188 F.3d

1157, 1159 (9th Cir. 1999).

the statute of limitations began to run for Petitioner on June 1,

2005, and expired on May 31, 2006, one year from when Petitioner’s

state court judgment became final.

Bowen, 188 F.3d at 1159. Since Petitioner did not file the pending

Petition

2244(d)(1)(A) absent tolling.

days

after

California

Supreme

Court

denies

28 U.S.C. § 2101(d); Rules of the Supreme Court of the

until

June

26,

If, as here, a petitioner does not seek

Whalem/Hunt v. Early, 233

Thus, applying Section 2244(d)(1)(A),

2013,

Whalem/Hunt, 233 F.3d at 1159;

untimely

under

Section

Petitioner Is Not Entitled To Statutory Tolling

Under 28 U.S.C. § 2244(d)(2), AEDPA’s limitations period is

tolled

conviction or other collateral review with respect to the pertinent

judgment or claim is pending.’”

(2007) (per curiam) (quoting 28 U.S.C. § 2244(d)(2)).

Petitioner did not file his initial habeas corpus petition in the

Los Angeles County Superior Court until on or around November 5,

2012,

2244(d)(1)(A).

while

well

“‘a

after

properly

the

filed

application

for

State

post-

Allen v. Siebert, 552 U.S. 3, 4

limitations

period

expired

Here,

under

Since habeas corpus petitions filed after the

A 14

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 14 of 30 Page ID #:1713

statute of limitations has run neither toll nor revive an expired

limitations period, Petitioner is not entitled to statutory tolling

of the limitations period.

(9th Cir. 2013); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.

2003).

Larsen v. Soto, 742 F.3d 1083, 1088

Petitioner Is Not Entitled To Equitable Relief

Petitioner contends he is entitled to an equitable exception

to the limitations period because he is actually innocent of the

crimes for which he was convicted.10

No. 61 at 4-9).

(Dkt. No. 40 at 11-13; Dkt.

Petitioner’s contention is without merit.

“[A]ctual innocence, if proved, serves as a gateway through

which a petitioner may pass whether the impediment is a procedural

bar . . . or . . . expiration of the statute of limitations.”

McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Stewart v. Cate,

757 F.3d 929, 937 (9th Cir 2014).

However, “tenable actual-

innocence gateway pleas are rare[.]”

Perkins, 569 U.S. at 386;

Stewart, 757 F.3d at 938.

claim, a petitioner must “support his allegations of constitutional

error with new reliable evidence - whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence - that was not presented at trial.”

Delo, 513 U.S. 298, 324 (1995); House v. Bell, 547 U.S. 518, 537

(2006); Stewart, 757 F.3d at 941.

To make a credible actual innocence

Schlup v.

The habeas court then considers

Petitioner does not otherwise argue for equitable relief.

A 15

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“all the evidence, old and new, incriminating and exculpatory,

without regard to whether it would necessarily be admitted under

rules of admissibility that would govern at trial.”

U.S. at 538 (citation and internal quotation marks omitted); Lee

v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (en banc).

“‘petitioner does not meet the threshold requirement unless he

persuades the district court that, in light of the new evidence,

no juror, acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.’”

Schlup, 513 U.S. at 329); Lee, 653 F.3d at 937.

innocence’ means factual innocence, not mere legal insufficiency.”

Bousley v. United States, 523 U.S. 614, 623-24 (1998); Jaramillo

v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003).

“‘where post-conviction evidence casts doubt on the conviction by

undercutting the reliability of the proof of guilt, but not by

affirmatively proving innocence, that can be enough to pass through

the Schlup gateway to allow consideration of otherwise barred

claims.’”

House, 547

Perkins, 569 U.S. at 386 (quoting

Moreover, “‘actual

Nevertheless,

Lee, 653 F.3d at 938 (citation omitted).

Background

Petitioner

was

convicted

three

counts

willful,

deliberate,

victims Stephanie Webb (count 1), Arash Zad-Behtooie (count 2),

and Arturo Cisneros (count 3).

As to count 1, the jury also found it to be true that Petitioner

used a firearm within the meaning of P.C. § 12022.53(b), personally

and intentionally discharged a firearm within the meaning of P.C.

and

premeditated

attempted

murder

for

attacks

(CT 202-04, 207-09; RT 1205-11).

A 16

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firearm causing great bodily injury within the meaning of P.C. §

12022.53(d).

the jury found the P.C. § 12022.53(b) allegations true but the P.C.

§ 12022.53(c-d)11 allegations not true.

1207-09).

12022.53(c),

and

personally

and

intentionally

(CT 202, 207-08; RT 1206-07).

discharged

As to counts 2 and 3,

(CT 203-04, 208-09; RT

At trial, the jury heard evidence that shortly after midnight

on July 21, 2002, a group of friends – Chris Awada, Arash Zad-

Behtooie, Stephanie Webb, Arturo Cisneros, Carlos Barajas, and an

individual named Joaquin – drove in two vehicles to a party in

Pacoima.

first vehicle, while Zad-Behtooie drove the second vehicle in which

Webb, Barajas, and Joaquin were passengers.

Awada parked his vehicle a couple of blocks away from the party,

and Zad-Behtooie parked behind Awada.

Joaquin exited the vehicles and began walking to the party while

Awada remained in his vehicle to take the face plate off of his

stereo, Webb moved to the driver’s side of Zad-Behtooie’s vehicle

to turn off the stereo, and Zad-Behtooie stood by the rear driver’s

side door of his vehicle.

(RT 396-97, 409-10, 437).

Awada drove Cisneros in the

(RT 397, 410, 437).

(RT 411).

Cisneros and

(RT 397-98, 411, 413, 438-39).

While these activities took place, an SUV and a red hatchback

drove up and stopped alongside the parked vehicles, facing the

opposite direction from Awada and Zad-Behtooie’s vehicles.

(RT

Since Cisneros was not injured by the gunfire, there was no P.C.

§ 12022.53(d) allegation as to count 3. (CT 204, 208-09; RT 120809).

A 17

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 17 of 30 Page ID #:1716

411-12, 438-40).

was driven by Petitioner, stopped behind the SUV and alongside Zad-

Behtooie’s vehicle.12

occupants began arguing with Cisneros and Joaquin, telling them

“you guys gotta get out of here.

guys?

were yelling too.

hatchback said “‘Fuck you and your life.

while someone else in either the hatchback or SUV asked “‘Where

are you from?’”13

The SUV was in front and the hatchback, which

(RT 412-14, 450-53, 460-61, 755).

And stuff like that.”

You can’t be here.

(RT 415).

(RT 413-14).

The SUV’s

Who are you

The hatchback’s occupants

According to Webb, someone in the

This is Pacoima[,]’”

(RT 439-40).

Zad-Behtooie testified that he focused on the argument between

the SUV’s occupants, Cisneros and Joaquin, and he saw the SUV’s

driver pulled out a gun and said “‘You guys got to get out of

here.’”

Behtooie’s friends agreed to leave and started to walk away when

the SUV driver started shooting.

not pay any attention to the hatchback, and once the SUV driver

pulled the gun out, Zad-Behtooie’s attention was completely focused

on the SUV and he “didn’t even think of looking at the other car

anymore.”

the hatchback’s driver, he did not see anyone in the hatchback with

(RT 418-19).

(Id.).

After the SUV driver drew his weapon, Zad-

(RT 419-20).

Zad-Behtooie did

Accordingly, Zad-Behtooie could not identify

Both Petitioner and the SUV’s driver were gang members.

(RT

741, 747-56).

“Where are you from?” is a common challenge gang members use to

try to determine if the person or persons questioned are rival gang

members. (RT 722-25, 928-30). Persons with no gang affiliations

– such as the victims in this case – are sometimes attacked and

sometimes left alone. (RT 416-18, 724).

A 18

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 18 of 30 Page ID #:1717

a gun, and he never heard any shots from the hatchback.

23, 433).

(RT 422-

Webb testified that Petitioner’s vehicle was approximately

eight feet away from her and that she saw Petitioner, who was

wearing a blue Georgetown jacket, pull a gun out and extend his

right hand toward her before she turned away, someone pushed her

down, and she heard eight to ten gunshots.

449, 471-72, 482).

was shot in her left ankle,15 and one of the shots went through

Cisneros’s pants, making a hole in the pants without injuring

Cisneros.

(RT 351-52, 441-44,

Zad-Behtooie was shot in the stomach,14 Webb

(RT 339, 356, 420-21, 423-24, 443, 455-56).

The California Court of Appeal summarized the events following

the shooting, stating:16

Ten minutes later, Los Angeles Police Department

(LAPD) Officer Michael Smith observed a red hatchback

with a black hood that matched the description of the

hatchback involved in the shooting.

partner stopped to investigate, four men standing near

the hatchback, including [Petitioner], began to run away

When Smith and his

Zad-Behtooie stated that the SUV driver was not firing at him

and he did not know where the bullet came from that hit him. (RT

420).

15 Webb stated that when the incident occurred she was sitting in

the driver’s seat of Zad-Behtooie’s vehicle with the door open and

her left foot outside the car. (RT 439, 449-50).

There is no real dispute about what occurred after the shooting.

Accordingly, the Court relies on the California Court of Appeal’s

summary of these events. See 28 U.S.C. § 2254(e)(1).

A 19

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 19 of 30 Page ID #:1718

from the officers.

witnessed [Petitioner], who was wearing a blue Georgetown

jacket,

remove

waistband

and

throw

[Petitioner] eluded Smith, but was later apprehended by

a K–9 unit in the driveway of a nearby house.

the

apprehended in the yard where the pistol was tossed.

When [Petitioner] was apprehended, the arresting officer

found in his pocket a live nine millimeter round bearing

a Fiocchi imprint.

millimeter casings were found bearing the same Fiocchi

imprint.[17]

pistol

was

While chasing the four men, Smith

nine

millimeter

never

over

found,

pistol

wall

into

second

from

his

yard.

Although

suspect

was

At the shooting scene, two nine

Later that night, [Petitioner] was transported to

Pacifica

sustained during his arrest.

the same hospital undergoing treatment for the gunshot

wound she suffered during the shooting.

Wilbur escorted [Petitioner] to the doorway of [Webb]’s

hospital room to determine if she could identify him from

the shooting.

his eyes.

[Petitioner] was in custody did not mean he was innocent

or guilty of a crime.

Hospital

for

treatment

for

the

dog

bite

[Webb] was a patient at

Officer Mark

Wilbur instructed [Petitioner] to shut

He also admonished [Webb] that simply because

[Webb] was able to identify

LAPD Officer Mark Wilbur recovered the casings as well as a

live 9 mm. Fiocchi round in the middle of the street parallel to

the rear bumper of Zad-Behtooie’s car. (RT 341-47, 377).

A 20

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 20 of 30 Page ID #:1719

[Petitioner’s] Georgetown jacket as the one worn by the

shooter in the hatchback, but she could not identify his

face because his eyes were closed.

(Lodgment 9 at 3 (footnote added)).

New Evidence

Petitioner has attached the Declaration of Arash Zad-Behtooie

(“Zad-Behtooie Decl.”) to his Reply.

his declaration, which was signed on November 8, 2017, Zad-Behtooie

seeks to “supplement and clarify” his trial testimony.

particular, Zad-Behtooie states he “was not shot by anyone in the

hatchback that was parallel to my car” but that he “was shot by

the driver in the SUV” who Zad-Behtooie saw “extend his hand out

the window and start shooting.”

Zad-Behtooie states the SUV driver was shooting at Cisneros and

Joaquin who were walking toward Zad-Behtooie when he was shot.

(Id., ¶ 4).

he “heard the driver of the SUV yell out something like, ‘Pacoima,

Van Nuys Boys’” and the hatchback driver “yelled out something like

‘Do you know these guys?’”

he was closer to the hatchback than Webb and “would have been able

to clearly see the driver of the hatchback shooting,” but he never

saw anyone in the hatchback with a gun and “[a]t no point did the

driver of the hatchback have his arm out the window.”

Zad-Behtooie also claimed that, “given the angle at which I was

shot, I could not have been shot by anyone in the hatchback.”

(Dkt. No. 61, Exh. A).

(Id.).

(Zad-Behtooie Decl., ¶¶ 3-4).

Zad-Behtooie also indicates that before the shooting

(Id., ¶ 5).

Zad-Behtooie states that

(Id., ¶ 6).

A 21

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 21 of 30 Page ID #:1720

(Id.).

sound of the shots that there was only one gun being fired” and

that “[n]o shots were fired from the hatchback.”

Finally, Zad-Behtooie states that he “could tell from the

(Id., ¶ 7).

Analysis

The

Supreme

Court

has

emphasized

that

“tenable

actual-

innocence gateway pleas are rare[,]” Perkins, 569 U.S. at 386, and

involve “extraordinary” circumstances.

(“[I]t bears repeating that the Schlup standard is demanding and

permits review only in the extraordinary case.” (citations and

internal quotation marks omitted)); Larsen, 742 F.3d at 1095-96)

(“The Schlup standard ‘is demanding,’ and precedents holding that

involved dramatic new evidence of innocence.” (citation omitted)).

For instance, in House, the petitioner presented new DNA evidence

that semen found on the murder victim’s nightgown and panties came

from

contradicted the only forensic evidence at the scene linking the

petitioner to the murder and negated the prosecutor’s theory of

motive.

new evidence that blood found on his jeans could not have come from

the victim while she was alive, but instead might have gotten on

the

improperly sealed samples of the victim’s blood that spilled during

transit.

“troubling evidence” that the victim’s husband could have been the

murderer.

habeas

the

petitioner

victim’s

satisfied

husband

its

and

House, 547 U.S. at 540-41.

jeans

when

they

were

Id. at 542-48.

Id. at 548-53.

See House, 547 U.S. at 538

strictures

not

the

have

typically

petitioner,

which

The petitioner also presented

transported

the

FBI

along

with

Additionally, the petitioner presented

In particular, “two different witnesses

A 22

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 22 of 30 Page ID #:1721

. . . described a confession by [the victim’s husband]; two more

. . . described suspicious behavior (a fight and an attempt to

construct a false alibi) around the time of the crime; and still

other witnesses described a history of abuse.”

Supreme Court found that “although the issue is close, . . . this

is the rare case where — had the jury heard all the conflicting

testimony — it is more likely than not that no reasonable juror

viewing the record as a whole would lack reasonable doubt.”

at 554.

Id. at 551.

The

Id.

In Larsen, the petitioner was convicted of possession of a

deadly weapon after two police officers, responding to a report of

an assault with a deadly weapon at a bar, drove into the bar’s

parking lot and found a knife underneath a pickup truck after

witnessing a man, who they identified as petitioner, pull “a linear

object, about five or six inches long, from his waistband and

[throw] it underneath a nearby car[.]”

87.

witnesses “who were never called to speak on his behalf at his

trial” – including a former police chief and his wife who witnessed

the incident, an individual named William Hewitt who admitted the

knife was his, and Hewitt’s girlfriend who declared that Hewitt

had told her he had thrown the knife under a truck – “who gave

credible testimony that someone other than Larsen committed the

acts for which he was convicted and sentenced, while Larsen stood

nearby and did nothing at all, much less a criminal act.”

1088-90, 1096.

presented and concluded “it is more likely than not that no

Larsen, 742 F.3d at 1086-

On habeas review, Larsen presented evidence from multiple

Id. at

The Ninth Circuit considered the evidence Larsen

A 23

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 23 of 30 Page ID #:1722

reasonable juror hearing all of the evidence . . . would vote to

convict [Larsen] under the beyond-a-reasonable-doubt standard.”

Id. at 1096.

In Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en

banc), Carriger was sentenced to death for violently murdering a

jewelry store owner during a robbery.

chief prosecution witness, testified at Carriger’s trial that he

had been at home asleep at the time of the robbery and Carriger

had awakened him and confessed to the crime.

some nine years later, Dunbar – a “habitual liar accustomed to

blaming others for his own crimes” – “confessed under oath in open

court that he had robbed [the] jewelry store and murdered” the

victim and “had framed Carriger to avoid prosecution.”

467, 470-71.

occasions and accurately described details about the crime and the

crime scene that only a participant could have known.

471-72, 478-79.

concluded that Carriger “has more than shown sufficient doubt about

the

consideration of his constitutional claims.”

validity

Id. at 465.

Dunbar, the

Id. at 470.

However,

Id. at 465,

Dunbar also confessed to the crime on several other

Id. at 467,

Under these circumstances, the Ninth Circuit

his

conviction

satisfy

Schlup

and

permit

Id. at 478-79.

Unlike these cases, Petitioner has presented no “dramatic new

evidence of innocence.”

evidence

declaration, which Petitioner argues supports his actual innocence

claim and casts doubt on Stephanie Webb’s eyewitness testimony.

(See Dkt. No. 61 at 4-9).

Petitioner

Larsen, 742 F.3d at 1096.

presents

Zad-Behtooie’s

The only new

“clarify[ing]”

However, having reviewed the entirety

A 24

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 24 of 30 Page ID #:1723

of the evidence, the Court concludes that Petitioner has not made

“a showing of actual innocence sufficient to pass through the

Schlup gateway.”

Stewart, 757 F.3d at 943; Lee, 653 F.3d at 945.

In his declaration, Zad-Behtooie asserts that he was shot by

the SUV driver and not by anyone in the hatchback.18

Decl., ¶¶ 3-4, 6).

Petitioner as he contends.

firearm

Petitioner

convicted Petitioner of all three attempted murder charges.20

However, this statement is not as helpful to

enhancements

did

not

(Zad-Behtooie

A review of the jury’s findings on the

demonstrates

shoot

that

the

Zad-Behtooie,19

jury

but

concluded

nevertheless

(See

Contrary to this statement, at trial Zad-Behtooie testified

that he “really [did not] know where the bullet came from.” (RT

420).

19 As noted above, the jury found it true that Petitioner personally

used a firearm during the commission of all three attempted murders

(P.C. § 12022.53(b)) and that Petitioner personally and

intentionally discharged a firearm at Webb (P.C. § 12022.53(c)),

causing Webb great bodily injury (P.C. § 12022.53(d)); however,

the jury found the P.C. § 12022.53(c) allegations regarding ZadBehtooie and Cisneros and the P.C. § 12022.53(d) allegation

regarding Zad-Behtooie to be not true.

(CT 202-04, 207-09; RT

1205-11).

Before reaching these conclusions, the jury received

clarification from the trial court that Section 12022.53(b)

requires the defendant personally use a firearm and that Sections

12022.53(c-d) require a defendant personally discharge a firearm.

(RT 1202-03).

20 To be clear, the jury’s finding that the prosecution did not

prove beyond a reasonable doubt that Petitioner discharged a

firearm at Zad-Behtooie did not foreclose Petitioner’s conviction

for the attempted murder of Zad-Behtooie.

Rather, the jury was

instructed that Petitioner could be guilty of attempted murder not

only if he was the shooter but also if he aided and abetted the

shootings (see CT 168-69, 174-76; RT 1028-29, 1032-36), and given

the jury’s findings on the firearm enhancements, it seems clear

the jury concluded Petitioner shot Webb and the jury found

Petitioner guilty of the attempted murders of Zad-Behtooie and

Cisneros on an aiding and abetting theory. (See CT 202-04, 20709; RT 1205-11).

“Under California law, a person who aids and

abets the commission of a crime is a ‘principal’ in the crime, and

A 25

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 25 of 30 Page ID #:1724

declaration

nothing to demonstrate Petitioner’s actual innocence.21

202-04,

207-09;

reaffirming

1205-11).

Accordingly,

the

finding

jury

Zad-Behtooie’s

already

made

does

thus shares the guilt of the actual perpetrator.”

People v.

Prettyman, 14 Cal. 4th 248, 259 (1996); People v. Smith, 60 Cal.

4th 603, 611 (2014). An “aider and abettor is a person who, acting

with (1) knowledge of the unlawful purpose of the perpetrator; and

(2) the intent or purpose of committing, encouraging, or

facilitating the commission of the offense, (3) by act or advice

aids, promotes, encourages or instigates, the commission of the

crime.” People v. Jurado, 38 Cal. 4th 72, 136 (2006) (citations

and internal quotation marks omitted); People v. Delgado, 56 Cal.

4th 480, 486 (2013). The requisite intent to render such aid must

be formed prior to or during the commission of the crime. People

v. Montoya, 7 Cal. 4th 1027, 1046 (1994); People v. Cooper, 53 Cal.

3d 1158, 1164 (1991). Factors that may be considered in determining

aiding and abetting include “presence at the scene of the crime,

companionship, and conduct before and after the crime, including

flight.” People v. Haynes, 61 Cal. App. 4th 1282, 1294 (1998);

People v. Medina, 46 Cal. 4th 913, 924 (2009). In this case, the

evidence presented at Petitioner’s trial demonstrated that “all of

the probative factors relative to aiding and abetting are present

- presence at the scene of the crime, companionship and conduct

before and after the offense, including flight.”

People v.

Mitchell, 183 Cal. App. 3d 325, 330 (1986).

The prosecutor argued that Petitioner was guilty of attempted

murder as the shooter of Webb and Zad-Behtooie, but as an aider

and abettor to the attempted murder of Cisneros. (See RT 977-84).

Defense counsel agreed that the SUV driver shot at Cisneros, but

argued the SUV driver also shot Webb and Zad-Behtooie (and that

Petitioner did not aid and abet the attempted murders). (See RT

994-1003).

Given Zad-Behtooie’s testimony that he did not know

who shot him, that the shot entered his left side from the front

and exited through his back, and that he was facing the SUV when

he was shot (RT 420, 423, 435), it was entirely reasonable for the

jury to conclude that the prosecution had not proven beyond a

reasonable doubt that Petitioner shot Zad-Behtooie – so as to find

the P.C. § 12022.53(c-d) enhancements not true as to him – but

nevertheless convict Petitioner of the attempted murder of ZadBehtooie on an aiding and abetting theory. Similarly, given Webb’s

testimony and the firearm, bullet, and shell casing evidence

(discussed further below), the jury could reasonably conclude that

Petitioner shot Webb. There is no dispute that the SUV driver –

not Petitioner – shot at Cisneros and that Petitioner was convicted

of the attempted murder of Cisneros on an aiding and abetting

theory.

A 26

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Moreover,

several

the

statements

Zad-Behtooie’s

declaration

instance, Zad-Behtooie indicates that before the shooting he heard

Petitioner “yell[] out something like, ‘Do you know these guys?’”

(Zad-Behtooie

similarly at Petitioner’s trial.22

testimony that the driver of the hatchback yelled “‘Who are these

guys?’”)).

from the sound of the shots that there was only one gun being

fired” and that “[n]o shots were fired from the hatchback” (Zad-

Behtooie Decl., ¶ 7) essentially reiterates Zad-Behtooie’s trial

testimony that he never heard any shots fired from the hatchback.

(RT 433).

not

“Petitioner may not make a showing of actual innocence based on

what was known at the time of trial and presented to the jury.”

Cooper v. Brown, 510 F.3d 870, 874, 971 (9th Cir. 2007); see also

Bannister v. Delo, 100 F.3d 610, 618 (8th Cir. 1996) (“[P]utting a

different spin on evidence that was presented to the jury does not

satisfy the requirements set forth in Schlup.”).

reiterate

Decl.,

portions

5).

his

However,

trial

testimony.

Zad-Behtooie

For

testified

(See RT 431-32 (Zad-Behtooie’s

Similarly, Zad-Behtooie’s claim that he “could tell

Thus, these portions of Zad-Behtooie’s declaration do

advance

Petitioner’s

actual

innocence

argument

becuase

Finally, Zad-Behtooie states that he “would have been able to

clearly see the driver of the hatchback shooting,” but he never

saw anyone in the hatchback with a gun and “[a]t no point did the

Zad-Behtooie also indicates that the SUV driver yelled out

“something like, ‘Pacoima, Van Nuys Boys.’” (Zad-Behtooie Decl.,

¶ 5). Certainly, that the SUV’s driver yelled out the name of the

gang that both he and Petitioner belonged to (RT 741, 747-56, 950)

does nothing to undermine Petitioner’s convictions.

A 27

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 27 of 30 Page ID #:1726

driver of the hatchback have his arm out the window.” (Zad-Behtooie

Decl., ¶ 6).

focused on the SUV’s occupants and was “looking away towards the

end of the street” rather than at the hatchback Petitioner was

driving, that as soon as the SUV driver pulled a gun out, Zad-

Behtooie was completely focused on the SUV and “didn’t even think

of looking at the other car anymore[,]” and that while he was

watching

hatchback.

not get a good look at Petitioner – the hatchback’s driver – and

he was unable to identify him.

the

However, at trial, Zad-Behtooie explained he was

SUV

did

(RT 418-20).

not

know

what

was

happening

the

Zad-Behtooie also indicated that he did

(RT 421-22, 433).

Webb, on the other hand, did focus on Petitioner and was able

to identify him as the hatchback’s driver, describing, among other

things, the blue Georgetown jacket he was wearing as well as the

“mean look” in his eyes as she observed him from approximately

eight feet away while he pulled out a gun and extended his hand

toward her.23

Webb’s testimony about Petitioner and the gun is supported by other

evidence,24 including that: Officer Mark Wilbur’s found two shell

casings as well as a live 9 mm. Fiocchi round in the middle of the

(RT 351-52, 441-44, 449, 471-72, 482).

Moreover,

After seeing Petitioner with a gun, Webb turned away, so she

did not see if Petitioner fired the gun. (RT 443).

Petitioner complains that Webb never indicated that she saw a

gun in Petitioner’s hand. (See Dkt. No. 61 at 6-7). But while

Webb could not remember at trial whether she saw Petitioner with a

gun, she affirmed her preliminary hearing testimony indicating that

she saw Petitioner pull out a gun, and she stated that her memory

was better at the hearing – which occurred less than two months

after the shootings – than it was at trial, which occurred almost

ten months after the shootings. (RT 442, 482; see also CT 8-9).

A 28

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 28 of 30 Page ID #:1727

street parallel to the rear bumper of Zad-Behtooie’s car – i.e.,

about where Petitioner’s car was located at the time of the

shooting;25 Petitioner was observed getting rid of a 9 mm. handgun

shortly after the shootings occurred; and Petitioner was arrested

with a 9 mm. Fiocchi round in his pocket.26

664-67).

presented at trial as well as Zad-Behtooie’s new declaration could

reach the same decisions as the jurors in this case made, including

determining that Petitioner used a gun during the attempted murders

and that he shot Webb.

677 (9th Cir. 2002) (en banc) (“[E]ven “if all of the evidence

Sistrunk now proffers had been introduced at the trial, we are

unconvinced, in light of the [evidence presented at Sistrunk’s

trial], that ‘it is more likely than not that no reasonable juror

would have convicted him.’” (quoting Schlup, 513 U.S. at 327));

see also Coleman v. Johnson, 566 U.S. 650, 655 (2012) (Juries have

“broad discretion in deciding what inferences to draw from the

evidence presented at trial,” and are only required to “‘draw

reasonable

(citation omitted)).

(RT 341-47, 377, 414,

Certainly, a reasonable juror considering the evidence

inferences

See Sistrunk v. Armenakis, 292 F.3d 669,

from

basic

facts

ultimate

facts.’”

Thus, considering the entirety of the evidence – including

old and new evidence – Petitioner simply has not shown that, “‘in

Officer Wilbur explained the manner in which handguns work,

including describing how shell casings are ejected from

semiautomatic handguns and how a live bullet can be ejected from a

semiautomatic handgun. (RT 342-44).

Officer Wilbur testified that the Fiocchi brand was unique and

that in his nine-and-a-half years with the LAPD and his four years

in the military, he had never seen the brand Fiocchi. (RT 345).

A 29

Case 2:13-cv-04880-R-SS Document 66 Filed 10/29/18 Page 29 of 30 Page ID #:1728

light of the new evidence, no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt.’”

569 U.S. at 386 (quoting Schlup, 513 U.S. at 329); Stewart, 757

F.3d at 939-43; Lee, 653 F.3d at 943-45; Sistrunk, 292 F.3d at 677.

Accordingly, Petitioner has not demonstrated that he is entitled

to pass through the actual innocence gateway, and his Petition must

be dismissed as untimely.27

Perkins,

Petitioner requests an evidentiary hearing on his actual

innocence assertion.

(Dkt. No. 61 at 1-2, 9).

However, an

evidentiary hearing is not required because, as discussed herein,

even crediting Zad-Behtooie’s declaration, Petitioner is not

entitled to pass through the Schlup gateway. See Stewart, 757 F.3d

at 942-43 (district court properly denied evidentiary hearing on

actual innocence gateway claim when Stewart was not entitled to

the relief sought even if the court fully credited Stewart’s new

evidence); Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir.

2002) (evidentiary hearing on actual innocence claim not necessary

when both the affidavits of the “new” witnesses and the trial

record “speak for themselves and do not support Gandarela’s claim

of actual innocence”).

Petitioner also argues he is entitled to an evidentiary

hearing so that he can present the testimony of the actual

perpetrator of the crime.

(Dkt. No. 40 at 11-13).

However,

Petitioner has not identified the purported “actual perpetrator,”

let alone provided any evidence supporting this argument, and his

conclusory allegation provides no basis for holding an evidentiary

hearing.

See Herrera v. Sec’y of Corrs., 2018 WL 3424583, *15

(C.D. Cal.) (unsupported and conclusory allegation of actual

innocence does not warrant an evidentiary hearing), report and

recommendation accepted by, 2018 WL 3410104 (C.D. Cal. 2018); Lyons

v. Frigo, 2007 WL 2572338, *17 (D. Ariz. 2007) (“[C]onclusory

allegations are insufficient to support a claim or justify an

evidentiary hearing.”).

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CONCLUSION

For the foregoing reasons, IT IS RECOMMENDED that the District

Court issue an Order: (1) accepting this Report and Recommendation,

(2) denying the Petition for Writ of Habeas Corpus, and (3)

directing that Judgment be entered dismissing this action.

DATED:

October 29, 2018

/S/

__________

SUZANNE H. SEGAL

UNITED STATES MAGISTRATE JUDGE

NOTICE

Reports and Recommendations are not appealable to the Court

of Appeals, but may be subject to the right of any party to file

objections as provided in the Local Rules Governing the Duties of

Magistrate Judges and review by the District Judge whose initials

appear in the docket number.

No notice of appeal pursuant to the

Federal Rules of Appellate Procedure should be filed until entry

of the judgment of the District Court.

A 31

A 32

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Case 2:13-cv-04880-R-SS Document 72 Filed 01/24/19 Page 1 of 2 Page ID #:1760

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SAUL CERVANTES,

Petitioner,

ORDER ACCEPTING FINDINGS,

Case No. CV 13-4880 R (SS)

CONCLUSIONS AND

M.D. BITER, Warden,

RECOMMENDATIONS OF UNITED

Respondent.

STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the

Petition,

all

the

records

Recommendation

the

Petitioner’s Objections.

Objections were directed, the Court concurs with and accepts the

findings and conclusions of the Magistrate Judge.

the

portions

and

files

herein,

the

Report

and

United

States

Magistrate

Judge,

and

After having made a de novo determination

the

Report

and

Recommendation

A 34

which

Case 2:13-cv-04880-R-SS Document 72 Filed 01/24/19 Page 2 of 2 Page ID #:1761

IT IS ORDERED that the Petition is denied and Judgment shall

be entered dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this

Order

and

Respondent.

the

Judgment

herein

counsel

for

Petitioner

and

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED:

January 24, 2019

MANUEL L. REAL

UNITED STATES DISTRICT JUDGE

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JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SAUL CERVANTES,

Petitioner,

Case No. CV 13-4880 R (SS)

JUDGMENT

M.D. BITER, Warden,

Respondent.

Pursuant to the Court’s Order Accepting Findings, Conclusions

and Recommendations of United States Magistrate Judge,

IT IS HEREBY ADJUDGED that the above-captioned action is

dismissed with prejudice.

DATED:

January 24, 2019

MANUEL L. REAL

UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SAUL CERVANTES,

Case No. CV 13-4880 R (SS)

Petitioner,

ORDER DENYING CERTIFICATE OF

APPEALABILITY

M.D. BITER, Warden,

Respondent.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases,

this Court “must issue or deny a certificate of appealability

[(“COA”)] when it enters a final order adverse to the applicant.”

Under

U.S.C.

2253(c)(1)(A),

amended

the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), an appeal

may not be taken from “the final order in a habeas corpus proceeding

in which the detention complained of arises out of process issued

by a State court” unless the appellant first obtains a COA. Section

2253(c)(2), as amended by AEDPA, provides that “[a] certificate of

appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.”

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In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court

clarified the showing required to satisfy Section 2253(c)(2) and

to warrant issuance of a COA when a petition has been denied on

the merits:

To obtain a COA under § 2253(c), a habeas prisoner must

make

constitutional

[Barefoot v. Estelle, 463 U.S. 880 (1983)], includes

showing that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should

have been resolved in a different manner or that the

issues

encouragement to proceed further.’”

substantial

showing

right,

presented

the

denial

demonstration

were

“‘adequate

that,

under

deserve

Where a district court has rejected the constitutional

claims on the merits, the showing required to satisfy

§ 2253(c)

demonstrate

district court’s assessment of the constitutional claims

debatable or wrong.

straightforward:

that

reasonable

The

jurists

petitioner

must

would

the

find

Slack, 529 U.S. at 483-84 (citation omitted).

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Slack, however, does not require a showing by the petitioner

that his appeal will succeed.

337 (2003).

because the court believes that the applicant will not demonstrate

an entitlement to relief on the merits.

Miller-El v. Cockrell, 537 U.S. 322,

Accordingly, a court should not deny a COA merely

Id.

Slack also clarified the showing required to warrant issuance

of a COA when a petition has been denied on procedural grounds:

When the district court denies a habeas petition on

procedural

underlying constitutional claim, a COA should issue when

the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.

grounds

without

reaching

the

prisoner’s

Id.

Both showings must be made before the Court of Appeals “may

entertain the appeal.”

“a court may find that it can dispose of the application in a fair

and prompt manner if it proceeds first to resolve the issue whose

answer is more apparent from the record and arguments.”

that end, the law “allows and encourages the court to first resolve

procedural issues” rather than constitutional questions.

Id. at 485.

In resolving the COA issue,

Id.

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In Slack, the Supreme Court remarked:

Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that

the petitioner should be allowed to proceed further.

such a circumstance, no appeal would be warranted.

Id. at 484.

Petitioner, a California state prisoner, is serving three

consecutive life sentences with the possibility of parole based on

his 2003 conviction on three counts of willful, deliberate, and

premeditated attempted murder in violation of California Penal Code

(“P.C.”) §§ 664/187(a), along with an additional thirty-five years

for

Petitioner unsuccessfully appealed his conviction and sentence in

state court, and he unsuccessfully sought habeas relief in state

court in 2012 and 2013.

multiple

firearm

enhancements

under

P.C.

12022.53(b).

The Petition in this action, filed on July 8, 2013, raised

nine grounds for relief.

Motion to Dismiss the Petition as untimely, and Petitioner filed

an Opposition on January 14, 2014.

10, 2014, the Court granted the Motion and entered Judgment denying

the Petition and dismissing the action with prejudice.

19-20, 25-26).

On October 16, 2013, Respondent filed a

(Dkt. Nos. 13, 18).

On June

(Dkt. Nos.

Petitioner appealed, and on December 12, 2016, the

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Ninth Circuit granted Petitioner’s unopposed motion for remand to

this Court to “consider what effect, if any, the Supreme Court’s

decision in Montgomery v. Louisiana, 136 S. Ct. 718 (2016) has on

the timeliness” of the Petition.

remand, the parties briefed Montgomery’s effect on the Petition’s

timeliness,

evidentiary hearing to address his purported actual innocence.

(Dkt. Nos. 40-41).

Reply, arguing he is actually innocent and entitled to an equitable

exception to AEDPA’s limitation period.

12, 2018, Respondent filed a Sur-Reply addressing Petitioner’s

actual innocence argument.

and

Petitioner

also

(Dkt. Nos. 28, 35).

argued

Following

entitled

Petitioner expanded on the latter issue in his

(Dkt. No. 61).

On June

(Dkt. No. 63).

Upon review, the Court again granted Respondent’s Motion to

Dismiss and dismissed this action as untimely.

concluded that the Petition’s only claim that could potentially be

rendered timely in light of Montgomery was Ground Six, and Ground

Six is without merit regardless of untimeliness.

Court found that Petitioner’s claims of actual innocence failed to

overcome the untimeliness bar, nor did such claims warrant an

evidentiary hearing.

The Court also

In addition, the

A 41

Case 2:13-cv-04880-R-SS Document 74 Filed 01/24/19 Page 6 of 6 Page ID #:1768

In his Objections, filed on January 22, 2019, Petitioner

requested a certificate of appealability.

The Court remains satisfied that the denial of his claims was

correct and concludes that reasonable jurists would not find its

prior decision to be “debatable or wrong.”

Accordingly, the Court declines to issue a COA.

(Objections at 12-13).

Slack, 529 U.S. at 484.

IT IS SO ORDERED.

Dated:

January 24, 2019

MANUEL L. REAL

UNITED STATES DISTRICT JUDGE

PRESENTED BY:

/S/

SUZANNE H. SEGAL

UNITED STATES MAGISTRATE JUDGE

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CV13-04880-R(RZ)

Lodged Doc. 9

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing_ or relying on opinions not certified for

publication or ordered published, exceP.t as specified by rule 977(b). This opmion l'ias not been certified for publication or

ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFOR.N""~-------SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

B168802

Plaintiff and Respondent,

(Los Angeles County

Super. Ct. No. PA042004)

t»Uiff OF AP~I.At.. •UOOHO OIIT.

l1 rr 11 mriD

SAUL CERVANTES,

DEC 0 9 2(}0t

Defendant and Appellant.

JOSEPH A. LANE

(

9epu~ ~

l (})!~,.,

~~·~

APPEAL from a judgment of the Superior Court of Los Angeles C~u~~~

Leslie E. Brown, Judge. Affirmed.

0"\

-o

ll ~;~ ~

C~i:

;-r:;D

.--

Edward J. Haggerty, under appointment by the Court of Appeal, fo~ Defendant and

Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney

General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez,

Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General,

for Plaintiff and Respondent.

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SUMMARY

Appellant Saul Cervantes challenges his convictions for attempted willful,

deliberate and premedi~ated murder and personal firearm use on the grounds of

insufficiency of evidence.. He further alleges prejudicial error was committed by

instructijlg-the jUry with CALTIC Nos. 2.52 and 8.66, refusing to suppress an out-of-court

; . . r .,_

~·

:· : ·,;

identificatidn,·and allowing a gang expert to testify. He also contends the imposition of

-consecutive prison terms violated due process.

We conclude substantial evidence supports the verdict that Cervantes was guilty of ·

·-

·~tte:tnpted murder and personal use of a frrearm.

CALTIC Nos. 2.52 and 8.66 were not

given erroneously and Cervantes waived his right to raise the issue on appeal by failing to

request clarification of the instructions at trial. The out-of-court identification was

properly admitted. Although the identification was unnecessary, it was neither unduly

suggestive nor unreliabl~. Gang evidence was properly admitted because its probative

. :

value in establishing motiv~ was not substantially outweighed by its· prejudicial effect

against Cervantes. Finally,- the tri13.l court may impose consecutive sentences without

submitting the factual basis for such terms to the jury.

STATEMENT OF FACTS AND PROCEDURAL IDSTORY

Shortly after midnight on July 21,2002, two cars parked near the intersection-of

Haddon Avenue and Kelowna Street in Pacoima. The frrst car, occupied by Chris A.,

Arturo C. and Joaquin, parked in front of the second car, occupied by Arash Z., Stephanie

W. and Carlos B. As·Arturo and Joaquin walked away from their cars, a sport utility

. vehicle (SUV) and a small hatchback driving down the street from the opposite direction

pulled up and stopped in the street approximately parallel to the two parked cars. The

. passengers in the SUV and the hatchback started shouting at Arturo and Joaquin, "Where

are you from?" and "Fuck you and your li~e, this is Pacoima."

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The driver of the SUV then pulled out a pistol and told Arturo and Joaquin, "You

guys got to get out of here." The driver of the hatchback, we~ing a blue Georgetown

jacket, pointed a gun at, Stephanie. At that point, approximately eight to ten shots were

fired. One of the shots stnick Arash in the stomach, one hit Stephanie in the ankle, and

one penetrated Arturo's pants without striking his body.

Ten minutes later, Los Angeles Police Department (LAPD) Officer Michael Smith

observed a red hatchback with a black hood that matched the description of the hatchback

involved in the shooting. When Smith and his partner stopped to investigate, four men

standing near the hatchback, including Cervantes, began to run away from the officers.

While chasing the four men, Smith witnessed Cervantes, who was wearing a blue

Georgetown jacket, remove a nine millimeter pistol from. his waistband and throw it over

a wall into a yard. Cervantes eluded Smith, but was later apprehended by a K -9 unit in

the driveway of a nearby house. Although the pistol was never found, a second suspect

was apprehended in the yard where the pistol was tossed. When Cervantes was

apprehended, the arresting officer found in his pocket a live nine millimeter round

bearing a Fiocchi imprint. At the shooting scene, two nine millimeter casings. were found

bearing the same Fiocchi imprint.

Later that night, Cervantes was transported to Pacifica Hospital for treatment for

the dog bite sustained during his arrest. Stephanie was a patient at the same hospital

undergoing treatment for the gunshot wound she suffered during the shooting. Officer

Mark Wilbur escorted Cervantes to the doorway of Stephanie's hospital room to

determine if she could identify him from the shooting. Wilbur instructed Cervantes to

shut his eyes. He also admonished Stephanie that simply because Cervantes was in

custody did not mean he was innocent or guilty of a crime. Stephanie was able to identify

Cervantes' Georgetown jacket as the one worn by the shooter in the hatchback, but she

could not identify his face because his eyes were closed.

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Cervantes was charged with three counts of attempted willful,. deliberate and

premeditated ·murder in violation of Penal Code section 664/187. The information

alleged as to all counts that Cervantes personally used and discharged a frrearm within the

meaning of Penal Code section 12202.53, subdivisions (b) and (c). It further alleged as to

the frrst two counts that Cervantes discharged a frrearm proximately causing great bodily

injury within the meaning of Penal Code section 12202.53, subdivision (d). Following a

jury trial, Cervantes was found guilty on all charges. He was sentenced to three

consecutive life terms for attempted murder, a 25 years to life enhancement under Penal

Code section 12202.53 subdivision(d) for personal frrearm use proximately causing great

bodily injury, and a 10 year enhancement under Penal Code section 12202.53 subdivision

·(b) for personal frrearm use.

Cervantes appeals the jury's verdict. He contends the evidence was insufficient to

. establish that he shot at Arash and Stephanie, aided and abetted in the shooting of Arturo,

and personally used~ frrearm, as well as insufficient to establish the shooting.was

premeditated and deliberated. He further contends the trial c.ourt committed prejudicial

error by instructing the jury with CALllC Nos. 2.52 and 8.66, refusing to suppress the

out-of-court identification, and allowing a gang expert to testifY.

DISCUSSION

· I.

The motion to suppress the out-of-court identification

was properly denied.

Cervantes contends Stephanie's out-of-court identification of him at the hospital

was unduly suggestive and inherently Unfair because, at the time of the identification, he ·

was accompanied by police officers, was handcuffed, and was wearing a unique .

Georgetown jacket. Due to the tinreliability of the out-of-court identification, Cervantes

asserts the trial court committed prejudicial error by refusing to suppress Stephanie's

identification; Further, Cervantes asserts Stephanie's subsequent identifications of him

were tainted by the out-of-court identification. The issue of reliability in an identification

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procedure depends on, "'(1) whether the identifica~ion procedure was unduly suggestive

and unnecessary [eitation]; and if so, (2) whether the identification itself was nevertheless

reliable under the totalio/ of the circumstances .... "' (People v. Ochoa (1998) 19 Cal.4th

353, 412.) "'If, and only if, the answer to the first question is yes and the answer to the

second is no, is the identification constitutionally unreliable.'" (Ibid.) An examination of

the totality of the circumstances includes the witness's opportunity to view the assailant at

the time of commission of the crime, the level of certainty demonstrated by the witness at

the identification, and the time differential between 'the crime and the identification. On

appeal, the appellant bears the burden of demonstrating that the identification procedure

was unreliable. (Ibid)

An Evidence Code section 402 hearing was conducted to determine whether to

suppress Stephanie's identification of Cervantes at the hospital. Officer Mark Wilbur,

who escorted Cervantes to Stephanie's hospital room, described the circumstances

surrounding the identification. Stephanie was given a "standard showup admonition" that

she was "going to be viewing a person who may or may not be involved in the crime of

her being shot in the ankle." She also was advised, "although the person is in police

custody and has handcuffs on, does not necessarily mean that he is innocent o:r guilty, and

that the purpose of her viewing this individual was to either eliminate or identify him as a

possible suspect." Following the admonition, Cervantes was escorted to the doorway of

Stephanie's hospital room with his eyes closed so that Stephanie could look at him

witho"!Jt fear of retaliation. Wilbur stood beside Stephanie while two other officers stood

next to Cervantes. Stephanie identified the Georgetown jacket Cervantes was wearing as

the same jacket worn by the driver of the hatchback who pointed a gun at her. She was

not able to identify Cervantes' face because his eyes were closed. At the conclusion of

the hearing, Cervantes' motion to suppress was denied. The trial court found that nothing

was inherently unfair or unduly suggestive about the out-of-court identification based

upon the totality of the circumstances.

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.Cervantes contends Stephanie's out-of-court identification was inherently imfair

and unduly suggestive because, when he was escorted to her hospital room, he was

handcuffed, was accompanied by police officers, and was wearing clothing identical to

that worn at the scene of the shooting. However, single-person identifications are not

inherently unfair, but are encouraged bec·ause any risk of suggestion is offset by the

reliability of an identification made while events remain fresh in the witness's mind.

(People v. Cowger (1988) 202 Cal.App.3d 1066, 1071-1072.) Moreover, to present a

suspect accompanied by officers to a witness receiving treatment in a hospital is not

unduly suggestive. (In re Carlos M (1990) 220 Cal.App.3d 372, 386 (Carlos M).)

In Carlos M, officers brought a handcuffed suspect to a rape victim's hospital room for

identification purposes two hours after her assault. (Ibid.) The suspect wore the same red

shirt artdjeans that the victim had described as the clothing worn by one of her assailants.

(!d. at p. 380.) The denial of the motion to suppress the out-of-court identification was

affirmed with a fmding that the police did nothing to suggest that the people the victim

observed in the hospital room were her assailants. (Ibid.)

Similarly, the record does not indicate the officers who accompanied Cervantes to

. Stephanie's room made any suggestion he was a shooter. Before escorting Cervantes to

the hospital room, the officers admonished Stephanie against concluding that Cervantes

was either guilty or innocent of the crime. Furthermore, Carlos M establishes it is not

unduly suggestive to present a handcuffed suspect to a victim in a hospital room for

identification purposes. (Carlos M, supra, 220 Cal.App.3d at p. 386.) In view of

surrounding circumst~ces, the out-of-court identification in this case was not unduly

suggestive.

Notwithstanding the conclusion that the identification was not unduly suggestive,

no evidence shows it was necessary. According to Wilbur, the out-of-court identification

occurred simply because Stephanie and Cervantes were in the same hospital. While a

strong public policy favors expeditious police work, (People v. Cowger, supra, 202

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Cal.App.3d at p. 1072), Oahoa makes it clear the out-of-court identification must be

necessary. (People v. Ochoa, supra, 19 Cal.4th p. at 412.) In this case, the identification

procedure employed was more convenient than necessary. Stephanie's injury was serious

•

but not life-threatening. This case must be contrasted with Stovall v. Denno (1967) 388

U.S. 293, where a permissible out-of-court identification occurred in the hospital room of

a sole witness to a murder as she lay in critical condition from 11 stab wounds. (Stovall v.

Denno, supra, 388 U.S. at p. 295.) Unlike Stovall, this case does not indicate any urgent

need for immediate identification and, therefore, the out-of-court identification was not

necessary.

The trial court's denial of the motion to suppress was proper nonetheless if the outof-court identification was reliable under the totality of the circumstances. Cervantes

contends Stephanie's identification at the hospital was not reliable. Applying the Ochoa

factors, the evidence shows the identification was reliable. First, Stephanie had ample

opportunity to observe Cervantes at the scene of the shooting. When Stephanie saw

Cervantes point a gun at her from appt;oximately eight feet away, she had an unobstructed

view of him. Her car door was open and his car window was all the way down. Based on

that encounter, she was able to provide a description of Cervantes to police that included

his body build, hairstyle, age, ethnicity and clothing. Second, Stephanie was certain the

· Georgetown jacket worn by Cervantes at the hospital was the same Jacket worn by the

person who pointed a gun at her. While she could not identify his face because his eyes

were closed at the time of the identification, her level of certainty as to the Georgetown

jacket supports the conclusion that her identification was reliable. (Carlos M, supra, 220

Cal.App.3d at p. 387.) Third, the time between the shooting and the identification at the

hospital spanned only a couple hours. Her recollection of the shooter remained fresh in

her mind and presumably accurate. (Ibid.) Based upon the totality of the circumstances,

there was no substantial likelihood of misidentification and, therefore, the trial court

properly denied the motion to suppress the out-of-court identification. (People v.

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Cunningham (2001) 25 Cal.4th 926, 990.)

Furthermore, the record does not support Cervantes' contention that Stephanie's

in-court identification of him at the preliminary hearing and at trial was tainted by the out•

of-court identification at the hospital. At the hospital, Stephanie was unable to identify

Cervantes' face because his eyes were closed. She did identify the Georgetown jacket

worn by Cervantes as the same one worn by the shooter in the hatchback. Two and a half

weeks after the out-of-court identification at the hospital, Stephanie was able to identify

Cervantes in a photographic six-pack as the person who pointed a gun at her. In

particular, she recognized his eyes which she described as dark and aggressive. At the

preliminary hearing and at trial, Stephanie again identified Cervantes based on her

memory of the incident and the booking photo ~eluded in the photographic six-pack.

The evidence therefore, does not support Cervantes' assertion that Stephanie's in-court

identification of him at the preliminary hearing and at trial was based on seeing his face at

the out-of-court identification at the hospital. Rather, she only later identified Cervantes'

face when she could see his eyes in the photographic six-pack, at the preliminary hearing

and at trial based on her observations of him at the shooting. The record accordingly does

not indicate that the out-of-court identification tainted Stephanie's subsequent

identifications of Cervantes.

II.

Expert testimony on gang evidence. was properly admitted.

Cervantes contends the admission of gang evidence was improper because it

impeached his character and the prejudicial effect of the evidence exceeded its probative

value.

In a gang-related case, gang evidence is admissible to prove motive, as long as its

probative value is not substantially outweighed by its prejudicial effect. (People v.

Williams (1997) 16 Cal.4th 153, 193.) In this case, following a hearing under Evidence

Code section 402, the trial court admitted. the gang evidence, concludmg the motive

underlying the shooting appeared to be gang-related. The classic utterance "Where are

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you from?," which was made immediately before the shooting, implied that the incident

was gang-related. ·(People v. Ruiz (1998) 62 Cal.App.4th 234, 240.)

To inform the ju~ that the shooting was characteristic of a gang attack, the

prosecution called Officer Marino Garde as a witness. Garde offered his knowledge .

about gang culture acquired while working with gangs over the past seven years. Garde

indicated that gangs employ violence to maintain territorial control, enhance the

reputation of the gang and gang members, and spread fear through intimidation. He

stated gangs tend to commit crimes in groups, and the utterance "Where are you from?" is

a classic precursor to an attack. Garde's evidence about gang culture was sufficiently

beyond the common experience of jurors that it helped place the shooting in context.

(People v. Willi~ms, supra, 16 Cal.4th at p. 195 [Expert testimony must assist the trier of

fact in reaching an informed conclusion].)

The record fails to support Cervantes' contention that the gang evidence was

offered to impeach his character. While Evidence Code section 1101 makes evidence of

a defendant's character inadmissible, the gang evidence was not offered for that purpose.

Rather, "Officer Garde's testimony related to the habits of gangs generally. The only

evidence directly relating to Cervantes was Garde's opinion, based on two prior meetings

with him while monitoring the Pacoima Van Nuys Boys Gang, that Cervantes was a

member of that gang. While Cervantes may construe this opinion as an attack on his

character, Cervantes later confirmed his gang membership. Moreover, following Garde's

testimony, the jury was admonished not to consider the gang evidence for the purpose of

showing that Cervantes was a person of bad character or was pre-disposed to commit

crime. Because the record does not indicate Garde's testimony was offered as evidence

of Cervantes' character, Evidence Code section 1101 does not render the gang evidence

inadmissible.

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The record further contradi~ts Cervantes' contention that the gang evidence was

more prejudicial than probative under Evidence Code section 352. While California

courts recognize the po~ential prejudicial effect of gang evidence, the evidence is

admitted when the motive for the crime is gang-related. (People v. Ruiz, supra, 62

Cal.App.4th at p. 240.) Garde placed the shooting in the context of typical gang violence

in which territorial attacks help bolster the reputation of both a gang and a gang member.

Although Garde did not personally investigate the shooting, his expertise on gang

customs generally and on the Pacoima Van Nuys Boys Gang specifically helped the jury

place the shooting in the context of typical gang attacks. (People v. McDaniels (1980)

107 Cal.App.3d 898, 904 [testimony relating to gang customs and psychology was

properly admitted].) By understanding the gang-related motive for the shooting, the jury

was in a better position to determine Cervantes' motivation with respect to the shooting.

As a result, Garde's testimony was admissible because its probative value in establishing

Cervantes' motive was not substantially outweighed by any prejudicial effect regarding

his character.

III.

The flight instruction given was not erroneous.

Cervantes contends the trial court bore a sua sponte duty to modify CALJIC 2.52

to reflect his explanation that he ran from the police merely because he was scared rather

than out of a consciousness of guilt. Although Cervantes does not specify the required

modification, he Claims the flight instruction improperly ignored his explanation for

running from the police. According to Cervantes, the failure to modify the instruction

constitutes Watson error as it is reasonably probable that, in the absence of the error, the

jury would have reached a more favorable result. (People v. Watson (1956) 46 Cal.2d

818, 836.) Although Cervantes' claim of error can be decided on its merits, he failed to

reserve the issue for appeal. (People v. Bolin (1998) 18 Cal.4th 297, 328.) Cervantes

objected to the flight instruction, but did not request any clarifying language. Therefore,

he cannot complain on appeal that a legally correct instruction was too general or

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.....

incomplete. (People v. Lang (1989) 49 Cal.3d 991, 1024.)

In support of his contention that the flight instruction was not given properly,

Cervantes cites People y. Hill in which the flight instruction was modified. (People v.

Hill (1967) 67 Cal.2d 105, 120.) However, the modification made in Hill merely

informed the jury that it was required to determine the weight given to flight evidence. 1

(Ibid.) In this case, the flight instruction given cautioned that a defendant's flight was not

sufficient to establish guilt, but was a fact for consideration. In comparing the language

of the modified instruction in Hill and the flight instruction given in this case, there does

not appear to be a substantial difference that could have resulted in prejudicial error.

Furthermore, we do not agree with Cervantes that CALllC 2.52 essentially informs

the jury that evidence of a defendant's flight establishes guilt. Rather, the instruction

cautions the jury that flight alone does not establish guilt, but must be considered along

with all the evidence. In this case, Cervantes sped away from the scene of the shooting in

his hatchback immediately after shots were fired.· Several minutes later, he fled from

police when they approached him. Cervantes' conduct after the shooting and when he

was approached by police suggest a consciousness of guilt and warrants a flight

instruction. (People

v. Bradford (1997) 14 Cal.4th 1005, 1055.) Under Bradford, flight

is established where a defendant flees the scene of the crime in an effort to avoid

detection, and by a defendants' attempt to avoid apprehension. (Ibid.) The trial court

therefore properly instructed the jury that evidence of Cervantes' flight must be

· considered in determining his .guilt or innocence.

the modified flight instruction in Hill added the sentence, "Whether or not

evidence of flight shows a consciousness of guilt, and the significance to be attached to

such a circumstance, are matters for your determination." (People v. Hill, supra, 67

Cal.2d at p. 120.) CALllC 2.52 used in the present case states, "The flight of a person

immediately after the commission of a crime, or after he is accused of a crime, is not

sufficient in itself to establish guilt, but is a fact which, if proved; may .be considered by

you in light of all other proved facts in deciding whether a defendant is guilty or not

guilty. The weight to which this circumstance is entitled is a matter for you to decide."

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IV.

The specific intent instruction was not erroneous.

Cervantes contends CALllC 8.66 was erroneous because it did not require the jury

to find specific intent as to each of the three attempted murder victims. Not only was it

not prejudicial error to give CALJIC 8.66, Cervantes failed to reserve the issue for appeal.

(People v. Bolin, supra, 18 Cal.4th at p. 328.) By failingto object to CALllC 8.66 at

trial, Cervantes cannot complain on appeal that an instruction correct in law was too

general or incomplete. (People v. Lang, supra, 49 Cal.3d at p. 1024.)

Although Cervantes failed to object to the specific intent instruction, he correctly

asserts that the jury must be instructed that attempted murder requires a specific intent to

. kill. (People v. Guerra (1985) 40 Cal.3d 377, 386.) The language ofCALllC 8.66,

however, is not vague as to specific intent. CALllC 8.66 states, "In order to prove

attempted inurder, each of the following elements must be proved; [~ (2) The person

committing the act harbored express malice aforethought, namely, a specific intent to kill

unlawfully another human being." Further, in accordance with the use notes following

CALllC 8.66, the trial court gave CALllC3.31.5 which states, "In the crime[s] charged

in Counts 1, 2, and 3, namely Attempted Murder, there must exist a union or joint

operation of act or conduct and a certain mental state in the mind ofthe perpetrator.

Unless this mental state exists the crime to which it relates is not committed." Taken

together, the two instructions make clear that specific intent is required on each count of

attempted murder. (See CALllC 1.01 [instructions to b~ considered as a whole].) The

· record, therefore, does not indicate the jury was erroneously instructed on specific intent.

Substantial evidence supports the finding that Cervantes

shot Arash and Stephanie, aided and abetted in the

shooting of Arturo, personally used a firearm, and that

the shooting was premeditated and deliberated.

Cervantes contends the evidence was insufficient to establish that he shot at Arash

and Stephanie, aided and abetted in the shooting of Arturo, personally used a firearm

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within the meaning of Penal Code section 12022.53 subdivisions (b), (c), and (d), and that

the shooting was premeditated and deliberated. The jury's verdict must be upheld on

appeal if substantial evi.dence supports its finding. (People v. Rayford ( 1994) 9 Cal .4th 1,.

23.) Moreover, the evidence must be viewed in light most favorable to respondent, and

we must indulge every inference in favor of the determinations made by the fact-finder.

(Ibid.) The standard of review is the same whether the evidence presented at trial was

direct or circumstantial. (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)

A~ ·

. The finding that Cervantes shot Arasb and

Stephanie is supported. by substantial evidence.

Notwithstanding Cervantes' contention that the evidence was insufficient to

establish he shot Arash and Stephanie, the prosecution witriesses supported the theory that

it was Cervantes who shot Arash and Stephanie. Arash testified he was standing next to

the rear driver's side door of his car when he was shot in the stomach. While he could not

identify anyone in the hatchback, he recalled that the shooter from the SUV was not

pointing a gun at him. His testimony indicates the bullet that struck him was not fired

from the SUV, but was fired from elsewhere.

Stephanie stated she was sitting in the diver's seat of Arash' s car when she saw a

man in a Georgetown jacket point a gun at her from the driver's seat of an old hatchback.

She estimated the shooter was eight feet away from her. Although Stephanie did not see

any muzzle flashes, she recalled turning her head away when she saw the gun pointed at

her and then hearing gunshots. She also made an in-court identification of Cervantes as

the person who pointed the gun at her. Stephanie's testimony, therefore, supports the

conclusion that Cervantes shot her from the hatchback. Moreover, Arash was shot while

standing a couple feet from Stephanie. Because Arash recalled that a person from the

SUV did not point a gun at him, the inference can be reasonably drawn that Arash and

Stephanie were shot by the sarile gunman.

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Police officers responding to the shooting also corroborated the prosecution's

theory that Cervantes shot Arash and Stephanie. Officer Michael Smith, who pursued

Cervantes on foot within minutes after the shooting, recalled Cervantes was wearing the

same blue Georgetown jacket identified by Stephanie as the jacket worn by the shooter.

Smith witnessed Cervantes brandish a nine millimeter pistol during the pursuit when only

five feet separated them. Smith also was able to make an in-court identification of

Cervantes as the person whom he pursued following the shooting. Moreover, when

Cervantes was arrested, an unused nine millimeter shell marked "Fiocchi" was found in

his pocket. Officer Mark Wilbur, who investigated the scene of the shooting, found two

nine millimeter casings bearing the same Fiocchi imprint. The nine millimeter pistol

Cervantes discarded during the pursuit and the nine millimeter Fiocchi bullets found at

both the scene of the shooting and in Cervantes' pants further suggest he was one Qf the

shooters.

Despite the direct and circumstantial evidence establishing Cervantes as a shooter,

he contends the evidence only supports a suspicion of guilt which is insufficient to

support a conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.) Cervantes

analogizes to People v. Blakeslee where a defendant was convicted of murdering her

mother. (People v. Blakeslee (1969) 2 Cal.App.3d 831, 833.) The conviction was

reversed because the evidence showing that the defendant was the only one with her

mother at the time of the killing did not "directly support an inference that [the defendant]

committed the crime. At most [it] show[ed] opportunity." (!d. at p. 838.) The court in

Blakeslee was troubled that no one witnessed the shooting, no one placed the defendant at

the scene of the shooting, and no one identified the defendant with any particular weapon.

(Ibid.) Cervantes contends that while the evidence may place him at the scene of the

shooting, it does not establish him as the shooter. At best, he argues, the circumstantial

evidence proves he had an opportunity to act as the shooter.

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Cervantes' position is contradicted by the prosecution evidence that establishes the

three elements missing in Blakeslee. First, Arash and Stephanie witnessed the shooting.

Second, Cervantes admitted

he was

present at the scene of the shooting, and Stephanie

saw Cervantes point a gun at her. Third, the arresting officer recovered a unique brand of

bullet from the shooting scene that matched a bullet found in Cervantes' pocket, and the

officer who pursued Cervantes on foot saw him discard a nine millimeter pistol. The

evidence shows Cervantes had a gun and, based on the Fiocchi casings found at the scene

of the shooting; a reasonable inference can be drawn that it was Cervantes who fired the

gun twice. Because the testimony from Stephanie and Wilbur corroborate the

prosecution's theory that Cervantes fired at Arash and Stephanie, the trier of fact's

determination cannot be overturned for insufficiency of evidence. (People v. Kunkin

(1973) 9 Cal.3d 245, 250.)

The finding that Cervantes aided and abetted

in tlie shooting of Arturo is supported by

substantial evidence.

Cervantes asserts.the evidence was insufficient to show he aided and abetted the

shooting of Arturo. To establish criminal liability on an aiding and abetting theory, it is

not necessary that the aider and abettor be prepared to personally commit the offense in

the event the perpetrator fails to do so. (People v. Beeman (1984) 35 Ca1.3d 547, 560.)

Rather, aiding an abetting occurs when a person provides aid or encouragement with the

intent of facilitating the perpetrator's commission of the crime. (Ibid.) No overt act is

required to be guilty of aiding and abetting. (People v. Moore (1953) 120 Cal.App.2d

303,306.)

Cervantes claims the evidence proves only that he was present at the scene of the

shooting, and not that he aided an abetted. When the SUV stopped in front of him, he

argues, his hatchback was presented with no alternative but to stop as well. While

Cervantes correctly asserts mere presence is not sufficient to constitute aiding and

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•

abetting, the evidence does not support his claim that he was merely present at the scene

of the shooting. (People v. Nguyen (1993) 21 Cal.App.4th 518, 53~.) The SUV and the

hatchback each contained members of Cervantes' gang who threatened the victims just

before the shooting. The driver of the SUV pointed a gun at Arturo and Joaquin and then

shot at them as they walked back to their car. One bullet passed through Arturo's pants

without striking his body. As the driver. of the SUV shot at Arturo and Joaquin, Stephanie

saw Cervantes point a gun at her and then she heard eight to ten shots ftred. Cervantes

was later seen discarding a pistol during the police pursuit, and he was apprehended

carrying a unique brand. of bullet that matched two casings found at the scene of the

shooting. Rather than merely placing Cervantes at the scene, the evidence indicates his

active participation in the shooting. Examining the evidence in the light most favorable

to the trial court's determination, we conclude substantial evidence supports the finding

that Cervantes aided and abetted in the shootmg of Arturo. (People v. Rayford, supra, 9

Cal.4th at p. 23.)

The finding that Cervantes personally used a

firearm is supported by substantial evidence.

CerVantes argues the evidence was insufficient to establish his personal use of a

firearm. He analogizes his case to People v. Allen (1985) 165 Cal.App.3d 616, in which a

Penal Code section ·12022.53 weapon enhancement fmding was reversed, while a murder

conviction was affirmed. (ld. at p. 626.) In that case, a murder occurred in a kitchen

occupied only by the two defendants and the victim. Because there were no witnesses to

the shooting, determining which defendant shot the victim was purely conjectural. (Ibid.)

Similarly, Cervantes argues, the evidence presented in this case does not support the

finding that he was the.sho~ter, only that shots were fired.

Cervantes' assertion directly conflicts with Stephanie's recollection that Cervantes

pointed a gun at her just before she turned her head away and heard gunshots. While no

other victim identified Cervantes as a shooter, "[i]t is well settled that, absent physical

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,,{

impossibility or inherent improbability, the testimony of a single eyewitness is sufficient

to support a criminal conviction." (People v. Allen, supra, 165 Cal.App.3d at p. 623.)

Stephanie's testimony provides ample support for the fmding that Cervantes used a

firearm. Moreover, circumstantial evidence showing that Cervantes discarded a pistol

shortly after the shooting and his subsequent apprehension carrying the same Fiocchi

brand bullets found at the scene of the shooting further indicates Cervantes was a

shooter. The finding that Cervantes personally used a firearm within the meaning of

Penal Code section 12022.53 subdivisions (b), (c), and (d) therefore, is supported by

substantial evidence. (People v. Rayford, supra, 9 Cal.4th at p. 23.)

.Premeditation and deliberation is supported by

substantial evidence.

Cervantes contends the evidence was insufficient to show the shooting was

premeditated and deliberated. To determine premeditation and deliberation, three factors

are typically considered, including (1) a defendant's prior planning, (2) the manner of the

attack, and (3) the motive for the attack. (People v. Anderson (1968) 70 Cal.2d 15, 26-27;

People v. Thomas (1992) 2 Cal.4th 489, 516-517 [factors provide a reasonable framework

for determining premeditation and deliberation, but are not exhaustive].)

Applying the Anderson factors, the record supports the jury's finding of

premeditation and deliberation. First, evidence that Cervantes carried a gun to the scene

of the shooting supports the inference of planning. (People v. Alcala (1984) 36 Cal.3d

604, 626 [defendant's possession of a weapon in advance ofthe killing supports an

inference of planning activity].) Additionally, the shooting was evidently gang-related.

Officer Garde's opinion that gang members commit violent crimes to enhance their own

reputation as well as that of their gang is consistent with the inference that Cervantes

planned the shooting in an effort to strengthen his gang's reputation and his own

~eputation as a gang member.

Second, the manner ~fthe shooting resembled a planned

gang attack. The victims recalled hearing the words, "Where are you from" and, "You

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··'

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can't be here" shouted from the SUV and the hatchback just before the shooting. These

words are typically used by gang members prior to an attack that seeks to protect gang

territory. The manner of the shooting, therefore, indicates it was a planned gang attack.

Third, Cervantes' motive also can be inferred from the fact that the shooting.was

evidently gang-related. According to Garde, gang members commit crimes to protect

their gang's territory and to assert their gang's status. Thus, Cervantes' motive for the

shooting can be inferred from his desire to further his gang's reputation.

The record, therefore, provides sufficient evidence to support the finding that the

shooting was premeditated and deliberated. (People v; Rayford, supra, 9 Cal.4th at

p. 23.)

VI.

Imposition of consecutive sentences did not violate due process.

Citing Blakely v. Washington (2004) 124 S.Ct. 2531 (Blakely) and Apprendi v.

New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the trail court's reliance

upon ft:tcts not found by the jury in order to impose consecutive 'terms for counts one

through three violated his right to a jury trial.

Apprendi essentially requires any fact, other than a prior conviction,.that increases

the penalty for a crime beyond the prescribed statutory maximum to be charged,

submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, 530 U.S. at

p. 490.) Blakely clarified that the relevant '"statutory maximum' for Apprendi purposes is

the maximum sentence a judge may iinpose solely on the basis ofthe facts reflected in the

jury verdict or admitted by the defendant." (Blakely, 124 S.Ct. at p. 2537, original

italics.) The key inquiry is whether the court was authorized to impose the particular

sentence in question without fmding any additional facts or only upon makirig some

additional factual fmding. (ld at p. 2538.) If any additional factual fmding is required,

Apprendi applies. (Ibid.)

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> •

In contrast to the statutory presumption in favor of the middle term as the sentence

for an offense (Pen. Code, § 1170, subd. (b)), no comparable statutory presumption exists

in favor of concurrent r~ther than consecutive sentences. (People v. Reeder (1984) 152

Cal.App.3d 900, 923.) Instead, Penal Code section 669 2 simply directs the trial court to

determine whether the sentences on multiple offenses are to be consecutive or concurrent.

If the court fails to make the determination, section 669 states that the terms are to be

concurrent. The statute therefore sets a default, but not a presumption. California Rules

of Court, rule 4.425 sets forth "[c]riteria affecting the decision to impose consecutive

rather than concurrent sentences." Although rule 4.406 (b)(5) includes the imposition of

consecutive sentences as a sentencing choice that generally requires the trial court to state

its reasons, no statute or rule of court requires the court to inake an additional factual

finding, above and beyond the mere fact of conviction of multiple current offenses, in

Penal Code section 669 provides, in pertinent part, as follows: "When any person

is convicted of two or more crimes, whether in the same proceeding or court or in

different proceedings or courts, and whether by judgment rendered by the same judge or

by different judges, the second or other subsequent judgment upon which sentence is

ordered to be executed shall direct whether the terms of imprisonment or any of them to

which he or she is sentenced shall run concurrently or consecutively. Life sentences,

whether with or without the possibility of parole, may be imposed to run consecutively

with one another, with any term imposed for applicable enhancements, or with any other

term of imprisonment for a felony conviction....

"In the event that the court at the time of pronouncing the second or other

judgment upon that person had no knowledge of a prior existing judgment or judgments,

or having knowledge, fails to determine how the terms of imprisonment shall run in

relation to each other, then, upon that failure to determine, or upon that prior judgment or

judgments being brought to the attention of the court at any time prior to the expiration of

60 days from and after the actual commencement of imprisonment upon the second or

other subsequent judgments, the court shall, in the absence of the defendant and within 60

days of the notice, determine how the term of imprisonment upon the second or other

subsequent judgment shall run with reference to the prior incompleted term or terms of

imprisonment. Upon the failure of the court to determine how the terms of imprisonment

on the second or subsequent judgment shall run, the term of imprisonment on the second

or subsequent judgment shall run concurrently."

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!·

order to impose consecutive terms. The court has the authority to impose consecutive

terms without fmding any additional facts. Accordingly, we conclude Apprendi and

Blakely do not apply to the imposition of consecutive sentences.

DISPOSITION

The judgment of the trial court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND,J.

We concur:

COOPER, P. J.

RUBIN, J.

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A 62

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.