Mardoqueo Guevara v. M. Junious, No. 2:2011cv00459 - Document 23 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER DENYING PETITION WITH PREJUDICE by Magistrate Judge Patrick J. Walsh. For all these reasons, the Petition is denied and the action is dismissed with prejudice. Further, because Petitioner has not made asubstantial showing of the denial of a constitutional right, he is not entitled to a certificate of appealability. See 28 U.S.C. section 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also Fed. R. App. P. 22(b). IT IS SO ORDERED. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MARDOQUEO GUEVARA, Petitioner, 11 12 13 v. MAURICE JUNIOUS, WARDEN, 14 Respondent. ) ) ) ) ) ) ) ) ) ) CASE NO. CV 11-459-PJW MEMORANDUM OPINION AND ORDER DENYING PETITION WITH PREJUDICE 15 16 I. 17 INTRODUCTION 18 Petitioner brings this habeas corpus petition pursuant to 28 19 U.S.C. § 2254, alleging that: 1) his sentence is unconstitutional 20 because he received concurrent sentences for multiple convictions 21 arising out of a single act; 2) there was insufficient evidence to 22 support his conviction of attempted extortion in Count 10; and 23 3) his sentence of 17 years to life for attempting to extort $25 24 constitutes cruel and unusual punishment. 25 the Court finds that the state courts did not err in rejecting these 26 claims. 27 28 For the following reasons, 1 II. 2 STATEMENT OF FACTS 3 The following statement of facts, including the footnotes, was 4 taken verbatim from the California Court of Appeal s decision 5 affirming Petitioner s convictions and sentence on direct appeal: 6 This case arises from repeated encounters in or about 7 December 2006 through March 2007 between [Petitioner], an 8 admitted gang member, and the victim Rafael Merida, a street 9 vendor.1 [Petitioner] was charged by information with committing 10 11 extortion (count 1), second degree robbery (count 2), and 12 attempted extortion (counts 8, 9, 10) against Merida.2 13 [Petitioner] was also charged with carrying a loaded, 14 unregistered firearm (count 6). 15 alleged as to counts 1, 2, 6, 8, 9 and 10, and firearm-use 16 enhancements were alleged as to counts 1 and 2. 17 information further specifically alleged as to counts 1, 2 18 and 6 that [Petitioner] had previously served a separate 19 prison term for a felony under Penal Code section 667.5, 20 subdivision (b). Gang enhancements were The 21 According to the three counts at issue, [Petitioner] 22 committed attempted extortion on the following occasions: 23 On or between December 1, 2006 and January 31, 2007 (count 24 25 26 1 Co-defendant Walter Giovanni Rivas accompanied [Petitioner] on some of those occasions. He is not a party to this appeal. 27 2 28 Co-defendant Rivas [was] also charge[d] in counts 1, 2 and 6. The trial court dismissed counts 3, 4 and 5 on the prosecution s motion at the preliminary hearing. 2 1 8); on or between February 1, 2007 and February 29, 2007 2 (count 9); and on or about March 26, 2007 (count 10). 3 The pertinent evidence presented at trial established 4 Merida operated a taco stand outside a liquor store at a Van 5 Nuys intersection. 6 by several other men, told Merida he was working in a 7 territory controlled by the Mara Salvatrucha (M.S.) gang, 8 and he would have to pay $25 in protection money or risk 9 being killed or having his taco stand burned down by Early in 2007, [Petitioner], accompanied 10 [Petitioner] and his companions. 11 he told [Petitioner] the taco stand did not belong to him. 12 Merida did not pay the protection money; [Petitioner] and 13 his companions left. 14 Merida was frightened, but (Count 8.) In February 2007, [Petitioner] returned with several 15 companions again and demanded the protection money, because 16 another taco vendor was paying it. 17 reminded Merida he already knew what would befall him if he 18 refused to make payment. 19 stand belonged to the liquor store. 20 companions left, again without collecting $25 from Merida. 21 (Count 9.) 22 [Petitioner] also This time, Merida said the taco [Petitioner] and his On Monday, March 26, 2007, [Petitioner] and his 23 companions came back a third time. 24 he would have to start paying the protection money by Friday 25 [March 30, 2007] and this was the last time they were 26 letting [Merida] know. 27 28 [Petitioner] told Merida Merida testified [Petitioner] always brought a handgun with him at every encounter. 3 1 Right after his third encounter with [Petitioner], 2 Merida contacted police, who gave Merida a microphone to 3 wear for his anticipated meeting with [Petitioner] on 4 Friday, March 30, 2007. 5 and video surveillance from a van parked near the 6 intersection of Merida s taco stand.3 7 with his companions that evening, told Merida he was there 8 for the protection money and asked if the two of them had a 9 deal. Officers agreed to conduct audio [Petitioner] arrived [Petitioner] said no one would bother Merida if he 10 made the $25 payment. Merida saw a handgun in 11 [Petitioner] s pocket. 12 the gun, yelled to a passing vehicle that it was in M.S. 13 territory and displayed what officers at the scene 14 recognized as an M.S. gang sign. 15 payment. 16 officers, and arrested. At one point, [Petitioner] produced Merida made the $25 [Petitioner] left the scene, was followed by 17 A police officer testified as a gang expert that 18 [Petitioner] committed the charged offenses for the benefit 19 of M.S., his criminal street gang. 20 The jury convicted [Petitioner] as charged and found 21 true the criminal street gain allegations and firearm-use 22 allegations. 23 found true the prior prison term allegation. In a bifurcated proceeding, the trial court At sentencing, the prosecutor sought a state prison 24 term of 17 years to life; defense counsel argued the 25 26 27 3 28 The audio/video recording was played for the jury. 154.) 4 (RT 152- 1 proposed sentence was cruel and unusual punishment for a $25 2 extortion, and urged the court to dismiss the gang 3 enhancements (§ 186.22, subd. (g)) so [Petitioner] would be 4 eligible to receive a determinate term sentence. 5 court replied that, had it not seen the videotape, it might 6 have been inclined to strike the gang enhancement. 7 after having seen the videotape of [Petitioner] and the way 8 he was acting . . . , the court feels that this was really 9 an egregious violation. The trial But It may have only been $25 on this 10 occasion, but it was an ongoing offense. [¶] [Petitioner] 11 was very persistent in collecting this and was clearly 12 trying to intimidate everyone . . . with his gang 13 affiliations. 14 strike the gang enhancements in the interests of justice. The court denied the defense motion to 15 The trial court imposed an aggregate state prison 16 sentence of 17 years to life, consisting of a life term with 17 a minimum eligible parole date of seven years for the 18 extortion charged in count 1, plus 10 years for the firearm 19 enhancement under section 12022.53, subdivisions (b) and 20 (e). 21 (the middle term of 18 months for attempted extortion, plus 22 a consecutive three-year criminal-street-gang enhancement) 23 on each of counts 8, 9 and 10.4 24 the court imposed and stayed sentence on count 2 for second 25 degree robbery, and on count 6 for carrying a loaded an[d] The court also imposed concurrent terms of 54 months Pursuant to section 654, 26 27 28 4 As discussed below, the middle term for attempted extortion is 24 months, rather than 18 months. (§ 524.) 5 1 unregistered firearm. 2 prior prison term enhancement in furtherance of justice. 3 (Lodgment No. 5 at 2-4). 4 III. 5 6 7 The court dismissed the one-year STANDARD OF REVIEW The standard of review in this case is set forth in 28 U.S.C. § 2254: 8 An application for a writ of habeas corpus on behalf of 9 a person in custody pursuant to the judgment of a State 10 court shall not be granted with respect to any claim 11 that was adjudicated on the merits in State court 12 proceedings unless the adjudication of the claim - 13 (1) resulted in a decision that was contrary to, or 14 involved an unreasonable application of, clearly established 15 Federal law, as determined by the Supreme Court of the 16 United States; or 17 (2) resulted in a decision that was based on an 18 unreasonable determination of the facts in light of the 19 evidence presented in the State court proceeding. 20 28 U.S.C. § 2254(d). 21 A state court decision is contrary to clearly established 22 federal law if it applies a rule that contradicts Supreme Court case 23 law or if it reaches a conclusion different from the Supreme Court s 24 in a case that involves facts that are materially indistinguishable. 25 Premo v. Moore, 131 S. Ct. 733, 743 (2011) (citing Bell v. Cone, 535 26 U.S. 685, 694 (2002)). 27 applied federal law, a petitioner must show that the state court s 28 application of Supreme Court precedent to the facts of his case was To establish that the state court unreasonably 6 1 not only incorrect but objectively unreasonable. Renico v. Lett, 130 2 S. Ct. 1855, 1862 (2010). 3 squarely decided an issue, a state court s adjudication of that issue 4 cannot result in a decision that is contrary to, or an unreasonable 5 application of, Supreme Court precedent. 6 131 S. Ct. 770, 786 (2011). Where no decision of the Supreme Court has See Harrington v. Richter, Petitioner raised all three of his claims in a petition for 7 8 review in the California Supreme Court. (Lodgment No. 6.) 9 supreme court did not explain its reasons for denying them. The appellate court, however, did. The (Lodgment 10 No. 7.) (Lodgment No. 5.) This 11 Court presumes that the state supreme court rejected Petitioner s 12 claims for the same reasons the state appellate court did. 13 therefore, looks to the appellate court s reasoning and will not 14 disturb it unless it concludes that fairminded jurists would all 15 agree that the decision was wrong. The Court, Richter, 131 S. Ct. at 786. 16 IV. 17 DISCUSSION 18 A. 19 Violation of California Penal Code Section 654 Petitioner argues that his sentence for extortion and the 20 concurrent sentences that he received for attempted extortion violate 21 California Penal Code § 654, because he is effectively being punished 22 multiple times for a single, indivisible course of conduct. 23 result, he argues, the concurrent sentences for attempted extortion 24 should be stayed. 25 5.) 26 As a (Petition for Writ of Habeas Corpus ( Petition ) at There is no merit to this argument. Because a state trial court s sentencing decisions are purely 27 matters of state law, sentencing errors are not cognizable in federal 28 habeas corpus proceedings. Estelle v. McGuire, 502 U.S. 62, 67-68 7 1 (1991) ( [I]t is not the province of a federal habeas court to re- 2 examine state-court determinations on state-law questions. ); Lewis v. 3 Jeffers, 497 U.S. 764, 780 (1990) ( [F]ederal habeas corpus relief 4 does not lie for errors of state law. ); Watts v. Bonneville, 879 F.2d 5 685, 687 (9th Cir. 1989) (holding claim based on California Penal Code 6 § 654 is not cognizable on federal habeas review). 7 assuming arguendo that the trial court misapplied California 8 sentencing law, Petitioner would not be entitled to relief unless he 9 could show that his sentence was fundamentally unfair. 10 Rhode, 41 F.3d 461, 469 (9th Cir. 1994). 11 support such an argument here. 12 B. Christian v. warrant federal habeas relief.5 13 Thus, even 14 There is no evidence to Consequently, this claim does not Insufficiency of Evidence to Support Attempted Extortion Petitioner claims that there was insufficient evidence to support 15 his conviction for attempted extortion on March 26, 2007, because he 16 had not demanded money or threatened to extort money from Merida on 17 that date. 18 (Petition at 5.) This claim, too, is without merit. Federal habeas corpus relief is not available to a petitioner who 19 claims that the evidence was insufficient to support his conviction 20 unless he can show that, considering the trial record in a light most 21 favorable to the prosecution, no rational trier of fact could have 22 found proof of guilt beyond a reasonable doubt. 23 443 U.S. 307, 324 (1979). 24 affirmatively appear in the record, that the jury resolved any Jackson v. Virginia, This Court presumes, even if it does not 25 26 27 28 5 The state appellate court determined that substantial evidence supported the trial court s implied finding that [Petitioner] s convictions for attempted extortion were separate and distinct offenses from each other as well as from the extortion[,] and, thus, his overall sentence was consistent with state law. (Lodgment No. 5 at 8, 10.) 8 1 conflicting inferences in favor of the prosecution. 2 Brown, 130 S. Ct. 665, 673 (2010) (quoting Jackson, 443 U.S. at 326). 3 Furthermore, the Court reviews insufficiency claims with an 4 additional layer of deference, granting relief only when the state 5 court s judgment was contrary to or an unreasonable application of 6 Jackson. 7 McDaniel v. Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005). In California, extortion is defined as the obtaining of property 8 from another, with his consent . . . induced by a wrongful use of 9 force or fear . . . . Cal. Penal Code § 518. Attempted extortion is 10 the attempt[], by means of any threat . . . to extort money or other 11 property from another. 12 of Appeal rejected Petitioner s insufficiency claim, noting: Cal. Penal Code § 524. The California Court 13 [Petitioner] contends the evidence is insufficient to 14 support his conviction for attempted extortion on count 10 15 because there was no testimony [he] actually made a demand 16 for money on March 26, 2007, nor is there evidence that he 17 made a threat to extort. 18 March 26, 2007, he simply asked [Merida] if a deal had been 19 made and said he would return on Friday, which amounted to 20 mere preparation for the commission of the crime on 21 March 30, 2007. According to [Petitioner], on His argument is without merit. 22 With respect to the crime of attempted extortion, 23 preparation [h]as been defined as devising or arranging 24 the means or measures necessary for the commission of the 25 offense. 26 movement toward the commission after the preparations are 27 made. 28 stage of mere preparation during his March 26, 2007 By contrast, [t]he attempt is the direct [Petitioner] s actions progressed well beyond the 9 1 encounter with Merida. As he had on the two prior 2 occasions, [Petitioner] appeared armed with a handgun and in 3 the company of his confederates. 4 testified [Petitioner] not only renewed his demand for 5 payment, but imposed a deadline for Merida to comply or 6 otherwise to suffer the previously threatened consequences. 7 Although on this date, [Petitioner] did not expressly renew 8 his threat to kill Merida or to destroy his business, the 9 threat was clearly implied under the circumstances. This time, however, Merida 10 [Petitioner] s words and the conduct exceeded preparation 11 and constituted unequivocal action towards the commission of 12 the crime of extortion. 13 supported by substantial evidence. 14 The verdict on count 10 is (Lodgment No. 5 at 6) (citations omitted). 15 The Court agrees that there was sufficient evidence to support 16 Petitioner s conviction for attempted extortion on March 26, 2007. 17 Prior to that date, Petitioner had confronted Merida twice before and 18 threatened he would kill him or burn down his taco cart if Merida did 19 not pay for protection. (Reporter s Transcript ( RT ) 136-49.) 20 times, Petitioner brought other gang members with him and brandished a 21 gun. 22 Petitioner approached Merida, March 26th, Petitioner was again armed 23 and again in the company of others. 24 Merida that Merida would have to start paying on [] Friday, and that 25 this was the last time that Petitioner was warning him. 26 204.) 27 conviction for attempted extortion on March 26th. 28 particularly so in the context of the first two encounters and the Merida was obviously afraid. (RT 137.) Both The third time that (RT 140-41.) Petitioner told (RT 140, This evidence was more than enough to support Petitioner s 10 This is 1 fourth encounter, wherein, after Petitioner confronted Merida again, 2 Merida paid Petitioner the money. 3 insufficiency claim is rejected. 4 C. 5 For these reasons, Petitioner s Sentence Constituting Cruel and Unusual Punishment In Ground Three, Petitioner argues that his sentence of 17 years 6 to life for a $25 theft with use of a weapon and for the benefit of a 7 gang constitutes cruel and unusual punishment. 8 attachment.) 9 (Petition at 5-6, This claim is without merit as well. The Eighth Amendment, which forbids cruel and unusual punishment, 10 contains a narrow proportionality principle that applies to non- 11 capital sentences. 12 non-capital cases, the Eighth Amendment prohibits only extreme 13 sentences that are grossly disproportionate to the severity of the 14 crime. 15 concurring); see also Lockyer v. Andrade, 538 U.S. 63, 72 (2003) ( A 16 gross disproportionality principle is applicable to sentences for 17 terms of years. ). 18 punishment, successful challenges to the proportionality of particular 19 sentences have been exceedingly rare. 20 263, 272 (1980); see also Andrade, 538 U.S. at 77 ( The gross 21 disproportionality principle reserves a constitutional violation for 22 only the extraordinary case. ). 23 Ewing v. California, 538 U.S. 11, 20 (2003). In Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J. As a result, [o]utside the context of capital Rummel v. Estelle, 445 U.S. In judging the appropriateness of a particular sentence, federal 24 courts must give state legislatures broad discretion to fashion a 25 sentence that fits within the scope of the proportionality principle 26 . . . . 27 the state s interest in dealing in a harsher manner with those who by 28 repeated criminal acts have shown that they are simply incapable of Andrade, 538 U.S. at 76. This includes taking into account 11 1 conforming to the norms of society as established by its criminal 2 laws. 3 277, 296 (1983) ( [A] State is justified in punishing a recidivist 4 more severely than it punishes a first offender. ). 5 within society also determine whether the proportionality requirement 6 has been met. 7 8 9 See Rummel, 445 U.S. at 276; see also Solem v. Helm, 463 U.S. Current norms Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). The California Court of Appeal rejected Petitioner s claim that his sentence constituted cruel and unusual punishment, finding: The length of the sentence alone does not warrant 10 relief. 11 [mandatory sentence of life without possibility of parole 12 for possessing 650 grams of cocaine did not violate Eighth 13 Amendment].) 14 not so disproportionate that it violates the prohibition 15 against cruel or unusual punishment. 16 (2003) 538 U.S. 11, 25-31.) 17 legislature enacted the three strikes law, it made a 18 judgment that protecting the public safety requires 19 incapacitating criminals who have already been convicted of 20 at least one serious or violent crime. 21 Eighth Amendment prohibits California from making that 22 choice. 23 have a valid interest in deterring and segregating habitual 24 criminals. 25 (See Harmelin v. Michigan (1991) 501 U.S. 957 For example, California s Three Strikes law is (Ewing v. California When the California Nothing in the On the contrary, our cases establish that States [Citations.] (Id. at p. 25.) The fact [Petitioner] s sentence might effectively be 26 for life without the possibility of parole based on his gang 27 affiliation and activities in this case does not render it 28 unconstitutional. (See People v. Byrd (2001) 89 Cal. App. 12 1 4th 1373, 1382-1383 [sentence of 115 years plus 444 years to 2 life not unconstitutional] . . . .) 3 [Petitioner] s sentence did not constitute cruel and 4 5 unusual punishment. (Lodgment 5 at 10-11) (parallel citations omitted). 6 Again, the Court agrees. Petitioner was convicted of extortion, 7 attempted extortion, and second degree robbery committed for the 8 benefit of a criminal street gang and while carrying a loaded firearm. 9 (CT 175-82, 209-10.) His sentence was enhanced based on the fact that 10 he had previously been convicted of carrying a loaded gun. 11 With that backdrop, there is nothing remotely improper or unconsti- 12 tutional about this sentence. 13 a sentence of 50 years to life for petty theft. 14 at 72-77 (holding consecutive 25-year-to-life sentences for 15 shoplifting $150 of video tapes from Kmart stores was not cruel and 16 unusual punishment); and see Taylor v. Lewis, 460 F.3d 1093, 1099-1102 17 (9th Cir. 2006) (holding sentence of 25-years-to-life for possession 18 of 0.036 grams of cocaine was not an unreasonable application of the 19 Supreme Court s proportionality standard). 20 (CT 206.) In fact, the Supreme Court has affirmed See Andrade, 538 U.S. Petitioner s argument that the amount of money in controversy, 21 $25, was so insignificant as to render his sentence extreme is 22 misplaced. 23 $25. 24 pay protection money to operate a business in territory claimed by 25 Petitioner s gang. 26 threats and displayed the gun at times. 27 first time Petitioner was out in public with a loaded gun. He had 28 been convicted of carrying a loaded gun two years earlier. Thus, his Petitioner s crime did not involve an attempted theft of It involved him threatening the life of a vendor for refusing to Petitioner was armed with a gun when he made his 13 In addition, this was not the 1 sentence was not disproportionate to the severity of his criminal 2 conduct. 3 consideration of harm caused or threatened to victim or society, 4 culpability of offender, and magnitude of crime in proportionality 5 review); see also Ewing, 538 U.S. at 26 ( Recidivism is a serious 6 public safety concern in California and throughout the Nation. ); 7 Solem, 463 U.S. at 296 (finding higher penalties for recidivists 8 justified).6 See Taylor, 460 F.3d at 1098 (holding permissible IV. CONCLUSION 9 10 For all these reasons, the Petition is denied and the action is 11 dismissed with prejudice. Further, because Petitioner has not made a 12 substantial showing of the denial of a constitutional right, he is not 13 entitled to a certificate of appealability. 14 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also 15 Fed. R. App. P. 22(b). 16 IT IS SO ORDERED. 17 DATED: See 28 U.S.C. section May 8, 2012. 18 19 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 20 21 22 23 S:\PJW\Cases-State Habeas\GUEVARA, M 459\Memorandum Opinion and Order - FINAL.wpd 24 25 26 27 28 6 To the extent that Petitioner is claiming that his sentence violates the California Constitution, this claim is not cognizable on federal habeas review. See Estelle, 502 U.S. at 67-68; see also Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) (declining to review cruel and unusual punishment claim relying on state supreme court s interpretation of its own precedent and the California Constitution). 14
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