Joseph Ruben Macias v. Ralph M Diaz, No. 2:2013cv01162 - Document 37 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING ACTION WITH PREJUDICE by Magistrate Judge Jacqueline Chooljian. (1) the Petition is denied and this action is dismissed with prejudice; and (2) the Clerk shall enter judgment accordingly. (hr)
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Joseph Ruben Macias v. Ralph M Diaz Doc. 37 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 JOSEPH RUBEN MACIAS, ) ) Petitioner, ) ) v. ) ) RALPH M. DIAZ, Warden, ) ) Respondent. ) ____________________________ ) 16 I. 17 Case No. CV 13-1162 JC MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING ACTION WITH PREJUDICE SUMMARY On February 15, 2013, Joseph Ruben Macias (“petitioner”), a state prisoner 18 proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State 19 Custody pursuant to 28 U.S.C. § 2254 and an attached memorandum (the 20 “Petition”).1 Petitioner asserts that there was insufficient evidence to support 21 certain of his conviction counts and a firearm enhancement and that the trial court 22 gave a jury instruction which violated his constitutional rights. On June 27, 2013, 23 respondent filed an Answer and a supporting memorandum (“Answer”).2 On July 24 21, 2014, petitioner filed a Traverse. 25 26 27 28 1 The attachment to the Petition is not paginated. The Court herein refers to the pages of the Petition by their filed page stamp. 2 Respondent concurrently lodged multiple documents (“Lodged Doc.”) including the Clerk’s Transcript (“CT”) and the Reporter’s Transcript (“RT”). Dockets.Justia.com 1 For the reasons stated below, the Petition is denied, and this action is 2 dismissed with prejudice. 3 II. PROCEDURAL HISTORY 4 On May 6, 2009, the Los Angeles County District Attorney filed an 5 Information charging petitioner and co-defendant Jonathan Rodriguez 6 (“Rodriguez”) with multiple second degree robberies of individuals working at a 7 lunch truck on or about December 21, 2008 (counts 1-3 against Rodriguez, counts 8 6-8 against petitioner), December 22, 2008 (count 9 against petitioner only), and 9 December 30, 2008 (count 10 against petitioner only), and further alleged as to 10 each such robbery that a principal personally used a firearm (“firearm 11 enhancement(s)”) and that the crimes were committed for the benefit of, at the 12 direction of, or in association with a criminal street gang (“gang 13 enhancement(s)”).3 (CT 88-93). On January 26, 2010, a Los Angeles County 14 Superior Court jury found petitioner guilty of all five of the second degree robbery 15 counts against him (counts 6-10) and found true all of the firearm enhancement 16 and gang enhancement allegations relative to such counts. (CT 219-23).4 The 17 trial court sentenced petitioner to a total of 26 years in state prison. (CT 299-300). On November 17, 2011, the California Court of Appeal affirmed the 18 19 judgment in a reasoned decision. (Lodged Doc. 8). On February 22, 2012, the 20 California Supreme Court denied review without comment. (Lodged Doc. 11). 21 /// 22 /// 23 24 25 26 27 3 Although the Information did not itself contain counts enumerated as count 4 or count 5, the verdict forms supplied to jury were consecutively numbered so as to avoid jury confusion such that the verdict forms for counts 6-10 reflect that they pertain to counts 4-8. (CT 88, 21923, 231-34). As petitioner refers to the original count enumeration reflected in the Information (see, e.g., Petition at 2), this Court does so as well. 4 The jury also found Rodriguez guilty of all three of the second degree burglary counts 28 against him. (CT 224-26). 2 1 III. FACTS5 2 At all pertinent times, Jose Mojica (“Mojica”) owned a “lunch” trailer which 3 he towed to a location in Montebello, where he cooked and sold food from 6 p.m. 4 through 11 p.m. daily. (RT 624-28, 636, 638). Mojica generally worked with his 5 nephew, Jose Cervantes (“Cervantes”), and/or his brother in law, Oswaldo 6 Velasquez (“Velasquez”). One person would cook while the other person would 7 sell food. (RT 627, 716, 727, 928-29, 1030-31). Transactions would take place 8 via the cashier through a window to the trailer. (RT 632). 9 A man robbed Mojica at gunpoint on December 22, 2008, while Mojica and 10 Velasquez were working in the trailer. (See RT 638-42, 672-73, 705-07 [Mojica 11 testifying that it was Cervantes who was working with him at the time]; but see 12 RT 949-53 [Velasquez testifying that he was present for this robbery], RT 1050 13 [Cervantes testifying that he did not work on December 22, 2008]. The robber 14 asked Mojica for money while pointing a gun at Mojica’s chest through one of the 15 trailer’s windows. (RT 640-42, 671). Mojica gave the robber money from the 16 cash register and the robber left. (RT 642, 676-78; but see RT 673 [Mojica 17 testifying it was Cervantes who gave the money to the robber]). The robber was 18 wearing a black hoodie with the hood up and loose black pants. (RT 642, 662, 19 669). 20 Mojica had seen this robber two or three times before – the robber had come 21 to the trailer on prior occasions where Mojica was able to see the robber’s face. 22 (RT 643, 645, 650, 670, 693). Mojica identified petitioner in court as the man 23 who robbed him on December 22, 2008, and testified that he recognized petitioner 24 /// 25 /// 26 27 5 Since petitioner challenges the sufficiency of the evidence, the Court has independently 28 reviewed the state court record. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). 3 1 at the time he was robbed. (RT 643-45, 714-15).6 Mojica had no doubt that 2 petitioner was the man who robbed him. (RT 665, 715, 726).7 Mojica had never 3 seen Rodriguez before. (RT 665). Mojica recalled petitioner returning to the trailer and demanding money 4 5 some time about a week after the December 22, 2008 robbery. (RT 645-47, 705, 6 707, 724, 727). Petitioner again demanded money through one of the trailer’s 7 windows while pulling out a gun where Mojica could see it and pointing the gun 8 down. (RT 647-48, 706-07, 724; but see RT 689 [Mojica testifying that he did not 9 see the gun when petitioner demanded the money]). Mojica was scared and gave 10 petitioner all the money Mojica had. (RT 648-49, 724). Petitioner left in a car but 11 Mojica did not get a look at the car. (RT 648, 650; but see RT 688-89 [Mojica 12 testifying that he saw petitioner get into a Mustang after this robbery]).8 Mojica 13 once again recognized petitioner because petitioner had come several times to the 14 /// 15 6 16 17 18 19 20 21 22 23 24 25 26 27 28 Mojica told investigators that the suspect (petitioner) had been to the trailer on other days before the last robbery and had taken food without using a gun. (RT 691-92, 712, 716-18, 727). Petitioner did not pay for the food. (RT 718, 720-21). Mojica was in fear when petitioner came to the trailer. (RT 722). 7 Within two weeks of the last robbery, Mojica identified chose petitioner’s photograph from a lineup as the person who robbed him. (RT 692-93, 713-14, 728-32). The first time Mojica was shown photographs (including one of petitioner) he could not recognize anyone. (RT 734-36, 738). 8 At some point after one of the robberies – Mojica was not sure which one but said it was the day before the last robbery (i.e., December 29, 2008) – Mojica saw petitioner getting into a white Mustang and Mojica wrote down the Mustang’s license plate number and provided that information to the police when he reported the robbery. (RT 650-51, 653-54, 658-60, 680-81, 688-91). Mojica was not working and was sitting in his own car watching the trailer when he took down the license plate. (RT 680-84, 689-90, 728). Mojica could see someone walk up to the trailer’s window then leave in the Mustang, but could not see whether the person had a gun. (RT 680-82). Mojica’s nephew reportedly told Mojica, “Look, they came and took our money again.” (RT 681). Later, Mojica testified that one or two months after the last robbery petitioner returned to the truck while Mojica was working and Mojica saw the Mustang and took down the license plate. (RT 707-08). 4 1 trailer and Mojica could see petitioner’s face and recognized his voice. (RT 649). 2 Both times Mojica was robbed, petitioner was about three to four feet away from 3 Mojica. (RT 649-50). Mojica reported each robbery to the police on the day it 4 happened and police responded the same day. (RT 708-09).9 5 Mojica did not know whether petitioner was a gang member, but described 6 petitioner as being dressed as a “cholo,” or gang member, on the day of the 7 robberies. (RT 663-64). He did not see petitioner make gang signs or use the 8 words “El Sereno.” (RT 694). Mojica said he was afraid that “they” would seek 9 revenge for his reporting the robberies to the police. (RT 709). 10 Velasquez and Cervantes testified about a third robbery that took place on 11 December 21, 2008, while they were working at the trailer with David 12 Dominguez. (RT 930, 932-49, 1034-37, 1040-49; see also RT 1544-53 13 [Dominguez testifying re same]; but see RT 1587 [Dominguez stating on cross14 examination that the date of the robbery was December 29]). Velasquez was 15 preparing food and Cervantes was working the cash register, when a man came 16 through the window of the trailer into the trailer behind Velasquez. (RT 932-33, 17 936-37, 1035, 1041-42, 1545, 1547, 1589). According to Velasquez, the man was 18 bald with a shaven head and wearing a loose sweatshirt and baggy pants. (RT 19 946). Cervantes described the man as wearing a white shirt and baggy blue pants. 20 (RT 1045-46). Dominguez described the man as bald and wearing a black jacket 21 with blue or black oversized pants. (RT 1552, 1589). The man went to Cervantes 22 and demanded money, then went to Velasquez and Dominguez and took their 23 money and Dominguez’s cell phone and left. (RT 937-40, 1042-44, 1051-52, 24 1546, 1548; but see RT 1594 [Dominguez testifying that his cell phone was not 25 26 27 28 9 Officer Victor Abarca testified that he responded to the trailer regarding a robbery report on December 30, 2008, and was given a license plate number by Mojica. (RT 912-14). The license plate was for a 2005 Ford Mustang registered to Theresa Angela Rodriguez at an address where defendant Rodriguez lived. (RT 915, 919, 1631, 1846). 5 1 taken]). Velasquez thought the man in the trailer had a weapon; he felt something 2 he thought was a gun that was heavy, hard, and dull, put against his back. (RT 3 938-39, 1000). Cervantes saw the man in the trailer with a black 9-millimeter gun 4 in his hand. (RT 1042, 1044). Dominguez did not see whether the man had a 5 weapon in his hand. (RT 1546). 6 Velasquez had a “little” opportunity to see the robber’s face, which he said 7 was “somewhat” familiar because Velasquez had seen the robber once before. 8 (RT 941). Dominguez initially said he had not seen the robber before, but then 9 said the robber looked familiar because he may have seen the robber near the 10 trailer before. (RT 1555). Velasquez did not identify anyone in court as the 11 robber. (RT 941). Cervantes and Dominguez also did not identify anyone in court 12 as the robber. (RT 1053, 1558). 13 Velasquez , Cervantes, and Dominguez each saw another person outside the 14 trailer who came with the robber. (RT 941, 1045, 1548-49). Velasquez described 15 the second person as wearing a navy blue cap that said “Sereno,” a sweatshirt with 16 the hood on, and baggy pants. (RT 942-43). Cervantes described the second 17 person as wearing black pants, a black sweatshirt, and a black cap with the words 18 “El Sereno,” but could not recall if the pants were oversized. (RT 1046-47). 19 Dominguez described the second person as wearing a blue sweatshirt, but did not 20 notice whether the sweatshirt had a hood, and did not see either robber wearing a 21 cap with the word “Sereno” on it. (RT 1551-52, 1589). Dominguez said the 22 person outside was bald. (RT 1589). 23 Velasquez saw the second person holding a black gun in his hand and said 24 the person was staring at or “mad-dogging” the men in the trailer, while waving 25 his hands like saying, “hurry up.” (RT 942, 944, 1000). Cervantes saw the second 26 person moving his hands and flashing signs from his neighborhood. (RT 1045). 27 Dominguez could see the second person’s face but did not see him doing anything 28 with his hands. (RT 1550-51). To Dominguez, the second man appeared to be 6 1 looking around. (RT 1551). Velasquez, Cervantes, and Dominguez were afraid. 2 (RT 942, 1045, 1547). 3 Velasquez had seen the second person about two times before the robbery 4 and had seen his face, which was familiar to Velasquez. (RT 944). Velasquez 5 feared the second person because he had come yelling that “this was his hood,” 6 and Velasquez thought that the person would be collecting money from the trailer 7 often. (RT 945). Dominguez had never seen the second person before the 8 robbery. (RT 1555-56). Cervantes and Dominguez both thought that the people 9 who robbed the trailer on December 21, 2008 were Cholos, or gang members. (RT 10 1047-48, 1555). Velasquez, Cervantes, and Dominguez did not identify anyone in 11 court as the second person. (RT 945, 1053, 1558-59). 12 After the robbery, Velasquez saw the two men leave together in a Toyota 13 Corolla. (RT 947, 1027; see also RT 1052 [Cervantes testifying that the two men 14 left together in a car but he did not recall the type of car]; RT 1552-53 15 [Dominguez testifying that he saw the two men leave together in a “little old 16 car”]). 17 Velasquez testified that the same two men returned the next day (December 18 22, 2008) and robbed the trailer. (RT 950). The man who entered the trailer 19 during the first robbery was the same man who robbed the trailer the next day with 20 a gun. (RT 950-53, 1000). The men drove away in the same Corolla. (RT 101321 14). Cervantes was not working that day and never saw the robbers from 22 December 21, 2008 again. (RT 1050, 1056). Dominguez testified that he did 23 work the next day, but did not testify about a robbery that day. (RT 1590). 24 Velasquez was in fear of retaliation when he testified. (RT 945-46). He 25 said that the defendants in the courtroom had been to the truck on other occasions 26 (i.e., often), but were not there on December 21 or 22, 2008. (RT 946, 954, 962, 27 /// 28 /// 7 1 985-86, 990-91, 1011).10 Petitioner and Rodriguez had been to the trailer on 2 December 30, 2008. (RT 954). Velasquez said that petitioner and Rodriguez were 3 used to being given food, but that day petitioner asked Mojica for food and money. 4 (RT 955-56). Rodriguez approached and said to give petitioner what petitioner 5 was asking for and nothing would happen to Velasquez and Mojica. (RT 959). 6 Velasquez could not see whether petitioner or Rodriguez were armed. (RT 956, 7 960, 995, 998, 1011, 1018-19). Petitioner took the food and money and left with 8 Rodriguez in a white Mustang. (RT 957, 960, 1014, 1019). Velasquez identified a photograph from a lineup on December 31, 2008, 9 10 and another photograph on January 13, 2009, as looking like the robbers. (RT 11 966-69, 974-79, 990-91, 995). Velasquez chose petitioner’s photograph, noting, 12 “At the time [petitioner] came asking for food, we gave them [sic] to him. But he 13 came some other time he came asking for money, and he had a gun.” (RT 978-79, 14 984-85, 996-98; see also RT 1620 [police officer identifying photograph number 3 15 as a photograph of petitioner]). Velasquez chose Rodriguez’s photograph as the 16 person with petitioner for the December 30, 2008 robbery. (RT 990-93). 17 Velasquez feared retaliation when he chose the photographs. (RT 970-71). 18 Velasquez had no doubt that petitioner and Rodriguez were the men who robbed 19 the trailer on December 30, 2008. (RT 1021). Cervantes testified that he had seen the men who robbed the trailer on 20 21 December 21, 2008 before, about four times per week for three weeks prior. (RT 22 1036-37, 1040). Cervantes could see their faces and hear their voices. (RT 104023 /// 24 /// 25 26 27 28 10 Velasquez testified that the robber who entered the trailer on December 21, 2008 had a tattoo on his neck. (RT 999). Cervantes could not remember if the robber had a tattoo, but told the prosecutor and police two days before he testified that the robber had a tattoo on his neck. (RT 1046, 1058). Dominguez did not notice whether the robber who entered the trailer had tattoos or unusual features on his neck. (RT 1589). 8 1 41).11 Dominguez identified photographs from two separate lineups on January 16, 2 2009, as looking familiar or similar to the robbers from December 21, 2008, but at 3 trial said that the photograph of petitioner was not of the man who entered the 4 trailer and robbed him. (RT 1567-74, 1578-80, 1585-87, 1596-97, 1601, 1603). 5 Dominguez noted at the time of the identification of petitioner’s photograph, “I 6 recognize number 3 because I saw him 2 times in the trailer, and he demanded 7 food. Two times, he didn’t pay. He intimidated all of us. Sometimes he asked for 8 money. I recognize him 100 percent.” (RT 1575). Regarding Rodriguez’s 9 photograph, Dominguez noted, “I know him because he came with number 3. He 10 also asked for money. He didn’t pay. He frightened all of us. He intimidated all 11 of us because of his gang. 100 percent.” (RT 1579). 12 A gang expert testified about the El Sereno gang territory, membership, 13 activities, identifiers and symbols, and detailed two cases where El Sereno gang 14 members were convicted of predicate crimes. (RT 1265-76, 1280-82, 1289-91). 15 The expert was familiar with petitioner from prior contacts and opined that 16 petitioner was an active gang member with the moniker “Merit,” based on a 17 purported self-admission in July of 2008, the time of the expert’s contact with 18 petitioner, petitioner’s contact with other active El Sereno gang members, and the 19 area in which petitioner had been seen. (RT 1282-84, 1291-95, 1300-01, 133320 39). Petitioner did not have any tattoos. (RT 1295, 1341, 1877-78). The expert 21 was also familiar with Rodriguez from research rather than personal contacts, but 22 opined that Rodriguez was an active gang member with the moniker “Little 23 Clumsy,” based on Rodriguez’s gang tattoos and Rodriguez’s contact with other 24 active El Sereno gang members. (RT 1295-96, 1302-04, 1344). The expert 25 26 27 28 11 Cervantes identified a photograph from a lineup as one of the robbers from December 21, 2008, but at trial Cervantes said it was not the man who robbed the trailer. (RT 1056-57, 1059-61). The Court struck from the record Cervantes’s testimony about identifying anyone from a photographic lineup before trial. (RT 1203-18 [discussion of issue with testimony outside the presence of the jury]; RT 1251-52 [admonition to jury]). 9 1 opined that the robberies charged were committed for the benefit of the gang 2 based on the location of the trailer in an area controlled by El Sereno, the fact that 3 neither robber attempted to cover his face and came to the trailer multiple times, 4 and acts the expert described as efforts to instill fear and intimidation in the 5 community and the victims. (RT 1306-14, 1346-50). 6 Responding police officers James Le and Richard Contreras testified for the 7 defense about the robberies. (RT 1848-60). Officer Le spoke responded on the 8 day of the December 21, 2008 robbery and spoke with Cervantes, Velasquez, and 9 Dominguez, who provided descriptions of the suspects. (RT 1851). Officer Le 10 noted that the suspect who came inside the trailer was described as having a tattoo 11 on the back of his neck, and the suspect who was outside the trailer was wearing a 12 hat with “El Sereno” on it. (RT 1851-52). Officer Contreras responded on the day 13 of the December 22, 2008 robbery and spoke with Mojica. (RT 1856-57). Mojica 14 reportedly told Officer Contreras that the suspects on December 22, 2008 were the 15 same suspects from the robbery the day before. (RT 1858). 16 IV. STANDARD OF REVIEW 17 This Court may entertain a petition for writ of habeas corpus on “behalf of a 18 person in custody pursuant to the judgment of a State court only on the ground that 19 he is in custody in violation of the Constitution or laws or treaties of the United 20 States.” 28 U.S.C. § 2254(a). A federal court may not grant an application for 21 writ of habeas corpus on behalf of a person in state custody with respect to any 22 claim that was adjudicated on the merits in state court proceedings unless the 23 adjudication of the claim: (1) “resulted in a decision that was contrary to, or 24 involved an unreasonable application of, clearly established Federal law, as 25 determined by the Supreme Court of the United States”; or (2) “resulted in a 26 /// 27 /// 28 /// 10 1 decision that was based on an unreasonable determination of the facts in light of 2 the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).12 In applying the foregoing standards, federal courts look to the last reasoned 3 4 state court decision. See Smith v. Hedgpeth, 706 F.3d 1099, 1102 (9th Cir.), cert. 5 denied, 133 S. Ct. 1831 (2013). “Where there has been one reasoned state 6 judgment rejecting a federal claim, later unexplained orders upholding that 7 judgment or rejecting the same claim rest upon the same ground.” Ylst v. 8 Nunnemaker, 501 U.S. 797, 803 (1991) (cited with approval in Johnson v. 9 Williams, 133 S. Ct. 1088, 1094 n.1 (2013)); Cannedy v. Adams, 706 F.3d 1148, 10 1158 (9th Cir. 2013) (it remains Ninth Circuit practice to “look through” summary 11 denials of discretionary review to the last reasoned state-court decision – whether 12 those denials are on the merits or denials of discretionary review), as amended on 13 denial of rehearing, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S. Ct. 1001 14 (2014). 15 V. DISCUSSION 16 A. 17 18 Petitioner’s Insufficiency of the Evidence Claim Does Not Merit Habeas Relief Petitioner contends that there was insufficient evidence to establish his 19 identity as one of the two perpetrators who committed the December 21 and 22, 20 2008 robberies (counts 6-9), and that the evidence was insufficient to establish 21 that a principal was armed during the December 30, 2008 robbery (i.e., the firearm 22 enhancement relative to count 10). (Petition at 31-40; Traverse at 3). Petitioner 23 argues that the evidence adduced at trial “did nothing more than raise a strong 24 25 26 27 28 12 When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 784-85 (2011); see also Johnson v. Williams, 133 S. Ct. 1088, 1094-96 (2013) (extending Richter presumption to situations in which state court opinion addresses some, but not all of defendant’s claims). 11 1 suspicion of [petitioner’s] guilt,” which purportedly “is not enough to support a 2 conviction.” (Petition at 31) (citing People v. Kunkin, 9 Cal. 3d 245, 250 3 (1973)).13 Petitioner does not dispute that he committed the December 30, 2008 4 robbery (count 10). (Traverse at 3). 5 The California Court of Appeal rejected petitioner’s claim on its merits on 6 direct appeal, noting that identification by even a single eyewitness can be 7 sufficient to prove identity, and highlighting the in-court and extrajudicial 8 identifications for the December 21 and 22, 2008 robberies, as well as Mojica’s 9 testimony that a gun was used during the December 30, 2008 robbery. (Lodged 10 Doc. 8 at 8-10). 11 This Court agrees with the Court of Appeal’s analysis. Petitioner is not 12 entitled to federal habeas relief on this claim. 13 14 1. Pertinent Law On habeas corpus, the court’s inquiry into the sufficiency of evidence is 15 limited in that it is subject to two layers of judicial deference. Coleman v. 16 Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam). 17 First, on direct appeal, “it is the responsibility of the jury – not the court – to 18 decide what conclusions should be drawn from evidence admitted at trial. A 19 reviewing court may set aside the jury’s verdict on the ground of insufficient 20 evidence only if no rational trier of fact could have agreed with the jury.” Id. 21 (quoting Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam)); see Jackson v. 22 Virginia, 443 U.S. 307, 319 (1979) (standard of review on sufficiency of the 23 evidence claim is whether, “after viewing the evidence in the light most favorable 24 to the prosecution, any rational trier of fact could have found the essential 25 elements of the crime beyond a reasonable doubt.”) (emphasis in original). “[T]he 26 27 28 13 Kunkin notes: “The test on appeal becomes whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.” People v. Kunkin, 9 Cal. 3d at 250 (quoting People v. Mosher, 1 Cal. 3d 379, 395 (1969)). 12 1 only question under Jackson is whether [the jury’s] finding was so insupportable 2 as to fall below the threshold of bare rationality.” Coleman, 132 S. Ct. at 2065. 3 Second, on habeas review, “a federal court may not overturn a state court 4 decision rejecting a sufficiency of the evidence challenge simply because the 5 federal court disagrees with the state court. The federal court instead may do so 6 only if the state court decision was ‘objectively unreasonable.’” Coleman, 132 S. 7 Ct. at 2062, 2065 (state court determination that jury’s finding was not so 8 insupportable as to fall below the threshold of bare rationality is entitled to 9 considerable deference on habeas review) (citations omitted); see Juan H. v. Allen, 10 408 F.3d 1262, 1274-75 (9th Cir. 2005) (as amended) (on federal habeas review, 11 relief may be afforded on sufficiency of the evidence claim only if state court’s 12 adjudication of such claim involved unreasonable application of Jackson to the 13 facts of the case), cert. denied, 546 U.S. 1137 (2006).14 14 Sufficiency of the evidence claims are judged by the elements defined by 15 state law. Jackson, 443 U.S. at 324 n.16. In California, a robbery conviction 16 requires proof of “the felonious taking of personal property in the possession of 17 another, from his person or immediate presence, and against his will, 18 accomplished by means of force or fear.” Cal. Penal Code § 211; CALCRIM No. 19 1600; People v. Scott, 45 Cal. 4th 743, 749 (2009). Petitioner does not claim that 20 there was insufficient evidence to establish that Velasquez, Cervantes, 21 Dominguez, and Mojica were robbed as charged (see Petition at 32-33; see also 22 RT 1896-97 (trial court’s summary for the jury the individual charges by date and 23 victim)); rather, petitioner challenges only the sufficiency of the identity evidence 24 to support his robbery convictions for December 21 and 22, 2008, and the 25 evidence that a principal used a firearm during the December 30, 2008 robbery. 26 27 28 14 The California standard for determining the sufficiency of evidence to support a conviction is identical to the federal standard enunciated by the United States Supreme Court in Jackson. People v. Johnson, 26 Cal. 3d 557, 576 (1980). 13 1 See Petition at 31-40 (discussing the various inconsistencies in the victims’ 2 testimony). 3 4 2. Analysis Petitioner essentially argues that the victims’ identifications of him were too 5 unreliable and insubstantial to support his conviction because: (1) none of the 6 victims from December 21, 2008 (Velasquez, Cervantes, and Dominguez) 7 identified petitioner in court as one of the robbers (Petition at 33-34); 8 (2) Velasquez and Cervantes both testified that the robber who entered the trailer 9 on December 21, 2008 had a tattoo on his neck (as reported to Officer Le), and 10 petitioner did not have any tattoos (Petition at 33-35); (3) while Dominguez 11 identified petitioner’s photograph from a lineup prior to trial as one of the men 12 who robbed him on December 21, 2008, Dominguez testified at trial, “This is not 13 the person who robbed me.” (Petition at 34 (citing RT 1570)); (4) as to the 14 December 22, 2008 robbery, Velasquez testified that the robber was the same man 15 who robbed the truck the day before, and again Velasquez did not identify 16 petitioner in court as the December 21 or 22, 2008 robber, whereas he identified 17 petitioner as committing the December 30, 2008 robbery (Petition at 35-36); 18 (5) the only victim to testify that petitioner committed the December 22, 2008 19 robbery was Mojica, whose testimony was “confused,” (e.g., Mojica did not 20 correctly recall who was working with him that night) (Petition at 37-38). 21 Petitioner also argues that Mojica’s testimony, which provided the only evidence 22 that a robber was armed on December 30, 2008, was conflicting because Mojica 23 testified first that a gun was used, and later that he did not see a gun. (Petition at 24 39-40). 25 These arguments were already made to, and rejected by, the jury at trial. 26 (See RT 1947-61 [petitioner’s counsel’s closing argument re same]; RT 1967-78 27 [Rodriguez’s counsel making similar argument in closing]). In presenting these 28 arguments again, petitioner essentially is asking this Court to reweigh the 14 1 evidence. However, the Court may not do so on federal habeas review. See 2 Cavazos, 132 S. Ct. at 7 n.* (reweighing facts precluded by Jackson); United 3 States v. Nevils, 598 F.3d 1158, 1170 (9th Cir. 2010) (in assessing sufficiency of 4 the evidence claim, it is not court’s function to reweigh the evidence) (citation and 5 quotation marks omitted). The only issue before this Court is whether it was 6 objectively unreasonable for the California courts to determine that a rational trier 7 of fact could have found beyond a reasonable doubt that petitioner committed the 8 December 21 and 22 robberies, and that a principal used a firearm during the 9 December 30 robbery. In this case, such question must be answered in the 10 negative. 11 Once again, petitioner does not deny that he robbed Mojica on December 12 30, 2008. (Traverse at 3). Identity is not an issue for this robbery. As 13 summarized above, Mojica positively identified petitioner as the man who robbed 14 him on December 22 and 30, 2008, and testified that petitioner used a gun both 15 times. Velasquez, the only victim present for all three robberies, testified that the 16 same two men who robbed him on December 21, 2008, returned on December 22, 17 2008 and robbed the trailer again. Velasquez said the same man who entered the 18 trailer on December 21 robbed the trailer on December 22 with a gun. While 19 Velasquez, Cervantes, and Dominguez, each denied in court that petitioner was 20 one of the robbers on December 21, 2008, Dominguez (who was only present for 21 the December 21, 2008 robbery) had identified petitioner’s photograph as looking 22 similar to one of the robbers, noting he recognized the person “100 percent.” 23 Based on this evidence, a rational trier of fact could agree with petitioner’s 24 jury that petitioner committed all three robberies and that a principal used a 25 firearm during each one. As the Court of Appeal noted, “[i]dentification of the 26 defendant by a single eyewitness may be sufficient to prove the defendant’s 27 identity as the perpetrator of a crime.” People v. Boyer, 38 Cal. 4th 412, 480 28 (2006) (citations omitted), cert. denied, 549 U.S. 1021 (2006); United States v. 15 1 Larios, 640 F.2d 938, 940 (9th Cir. 1981) (“The testimony of one witness . . . is 2 sufficient to uphold a conviction.”); United States v. Jones, 425 F.2d 1048, 1055 3 (9th Cir.) (“[I]n this circuit, . . . the testimony of one witness, if believed, is 4 sufficient to prove a fact.”) (citation omitted), cert. denied, 400 U.S. 823 (1970); 5 see also United States v. Foster, 243 Fed. Appx. 315, 316 (9th Cir. 2007) (even 6 testimony of one witness, if believed, sufficient to support conviction; resolution 7 of any question as to credibility properly entrusted to jury). Moreover, “testimony 8 that a defendant resembles the robber, or looks like the same, has been held 9 sufficient.” People v. Jackson, 183 Cal. App. 2d 562, 568 (1960) (internal 10 citations omitted); see also United States v. Smith, 563 F.2d 1361, 1363 (9th Cir. 11 1977) (statement that defendant “look[ed] like” the perpetrator sufficient), cert. 12 denied, 434 U.S. 1021 (1978). 13 Although petitioner points to discrepancies in the testimony and evidence, it 14 was the province of the jury to credit the evidence showing that petitioner was the 15 robber and that a principal used a firearm. See United States v. Ginn, 87 F.3d 367, 16 369 (9th Cir. 1996) (“The evidence is not rendered insufficient simply because 17 there are discrepancies in the eyewitnesses’ descriptions of the robber.”); People v. 18 Jackson, 183 Cal. App. 2d at 568 (“The uncertainty of recollection, qualification 19 of identity and lack of positiveness in the testimony of the several witnesses 20 complained of by appellant were matters going to the weight of the evidence and 21 the credibility of witnesses and for the observation and consideration, and directed 22 solely to the attention of, the jury in the first instance. . . .”). A jury’s credibility 23 determinations are “entitled to near-total deference under Jackson [v. Virginia].” 24 Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) (citations omitted) 25 (federal habeas court could not revisit jury’s resolution of inconsistencies between 26 victim’s account and those of other witnesses, and victim’s account was not 27 “wholly incredible”). Notwithstanding petitioner’s assertions to the contrary, this 28 /// 16 1 Court cannot say that the California courts’ deference to the jury’s findings was 2 objectively unreasonable. 3 As the California courts reasonably determined that the evidence of identity 4 and use of a firearm was constitutionally sufficient to support the challenged 5 robbery convictions and true finding on the challenged firearm enhancement, 6 petitioner is not entitled to federal habeas relief on this claim. 7 B. 8 Petitioner complains that the trial court improperly instructed the jury with Petitioner’s Jury Instruction Claim Does Not Merit Habeas Relief 9 CALJIC 4.71. The Court of Appeal issued the last reasoned decision addressing 10 the merits of this claim, reasonably rejecting it on direct appeal. (Lodged Doc. 8 11 at 10-17). Accordingly, this claim does not merit federal habeas relief. 12 13 1. Background The Information charged petitioner with committing robberies against the 14 named victims “on or about” December 21, 22, and 30, 2008. (CT 88-92; see also 15 RT 1896-97 [trial court instructing jury re same]). Prior to the close of the 16 prosecution’s case, the trial court indicated outside the presence of the jury its 17 intent to instruct the jury with CALJIC 4.71, which provides that proof that a 18 crime was committed need not show that it was on a precise date, because 19 Mojica’s testimony was not clear as to the exact day that the last robbery occurred. 20 (RT 1531). The trial court proposed that it also give CALJIC 17.01, a unanimity 21 instruction, which would require the jury to unanimously agree as to the offense 22 that forms the basis for a specific count. (RT 1531, 1833). 23 Petitioner’s counsel represented that he could clarify the dates and avoid 24 any confusion by having the responding police officers testify about the dates they 25 responded to the crimes, which were the same day the crimes occurred. (RT 153226 33). Counsel requested that the “on or about” evidence language be stricken from 27 the instructions because it would be clear what dates the parties were referencing. 28 (RT 1533). The trial court responded that it may be a solution to not instruct with 17 1 CALJIC 4.71 and 17.01 if the evidence became clear as to the dates of the alleged 2 crimes. (RT 1533; see also RT 1833-42 [further discussion regarding these jury 3 instructions]). 4 As noted above, in petitioner’s defense, his counsel presented officers who 5 testified to responding to the December 21 and 22, 2008 robberies, but not to the 6 December 30, 2008 robbery. When the subject of giving CALJIC 4.71 and 17.01 7 resumed after the close of petitioner’s evidence, the trial court indicated it would 8 give such instructions and a modified version of CALJIC 2.50, as addressing the 9 state of the evidence. (RT 1864-65). Petitioner’s counsel objected to the giving of 10 CALJIC 4.71, but agreed with giving the modified CALJIC 2.50 instruction, and 11 did not object to CALJIC 17.01. (RT 1866-67). 12 In accordance with its ruling, the trial court instructed the jury in pertinent 13 part: 14 [CALJIC 4.71] When, as in this case, it is alleged that the 15 crime charged was committed “on or about” a certain date, if you find 16 that the crime was committed, it is not necessary that the proof show 17 that it was committed on that precise date; it is sufficient if the proof 18 shows that the crime was committed on or about that date. 19 *** 20 [CALJIC 2.50] Evidence has been introduced for the purpose 21 of showing that a defendant may have committed a crime other than 22 that for which he is on trial. . . . This evidence, if believed, may not 23 be considered by you to prove that either defendant is a person of bad 24 character or that either defendant has a disposition to commit crimes. 25 It may be considered by you only for the limited purpose of 26 determining if it tends to show: ¶ The existence of the intent which is 27 a necessary element of the crimes charged; ¶ The identity of the 28 person who committed the crimes charged; ¶ A motive for the 18 1 commission of the crimes charged. . . . You are not permitted to 2 consider such evidence for any other purpose. *** 3 4 [CALJIC 17.01] Defendants Macias and Rodriguez are 5 accused in Counts 1 through 8 of the Information of having 6 committed specific crimes against named victims on or about certain 7 dates. The prosecution has introduced evidence for the purpose of 8 showing that there is more than one act upon which a conviction on 9 Counts 1 through 8 may be based. Defendants Macias and Rodriguez 10 may be found guilty if the proof shows beyond a reasonable doubt 11 that the particular defendant committed any one or more of the acts. 12 However, in order to return a verdict of guilty as to a charged crime, 13 all jurors must agree that the particular defendant committed the same 14 act. It is not necessary that you state in your verdict the particular act 15 upon which you have reached agreement. 16 (RT 1898, 1902-03, 1925-26 (emphasis added); see also CT 193-94, 200 (written 17 instructions)). 18 During deliberations, the jury made several requests. (CT 205-06, 216, and 19 218). They first requested the testimony of all the victims and an English 20 translation of the photographic identification statements. (CT 205). Four hours 21 later, the jury requested “the dates the witnesses/victims [Mojica, Velasquez, 22 Dominguez, and Cervantes] saw the suspects at the Mojica taco trailer [12/21/09 23 [sic], 12/22/09 [sic], 12/30/09 [sic]],” asking “Did each of these witnesses see or 24 not see Suspect 1 or Suspect 2 on 12/21, 12/22, or 12/30?” (CT 206). The trial 25 court responded by advising the jury that it was “to decide the facts based upon all 26 of the evidence. ¶ If you have any specific request for information and/or 27 readback, please notify the Court.” (CT 207; see also RT 2402-04 (discussing 28 same)). On the next morning of deliberations, the jury asked, “What does ‘on or 19 1 about’ mean exactly regarding the counts/charges for these suspects?” (CT 216). 2 The trial court responded, “The phrase ‘on or about’ is defined in Instruction 4.71. 3 You should review that instruction as well as Instruction 17.01.” (CT 217; see 4 also RT 2405-06 [discussing same]). The jury also asked for a reading of 5 Cervantes’ testimony. (CT 218). The jury reached its verdict within two hours of 6 the last two requests. (See RT 2405-06 [showing timing of requests and verdict]). 7 The verdict forms are worded, in relevant part: “We, the jury. . . find defendant, 8 [name] guilty, of the crime of robbery in the second degree. . ., alleged victim 9 [name], alleged date of [December 21, 2008 or December 22, 2008 or December 10 30, 2008], as charged in Count [number] of the Information.” (CT 219-26 11 [forms]). 12 13 2. Pertinent Law In a criminal trial, the State must prove every element of the offense. 14 Middleton v. McNeil, 541 U.S. 433, 437 (2004). A jury instruction violates due 15 process if it fails to give effect to that requirement. Id. (citing Sandstrom v. 16 Montana, 442 U.S. 510, 520-21 (1979)). 17 Federal habeas relief based upon a claim of instructional error is available 18 only when a petitioner demonstrates that “[an] ailing instruction by itself so 19 infected the entire trial that the resulting conviction violates due process.” Estelle 20 v. McGuire, 502 U.S. 62, 72 (1991); see also Waddington v. Sarausad, 555 U.S. 21 179, 191 (2009) (same) (citations omitted). A challenged instruction must be 22 evaluated in the context of other instructions and the trial record as a whole, not in 23 artificial isolation. Waddington, 555 U.S. at 191 (citations omitted). 24 If a jury instruction is ambiguous, inconsistent or otherwise deficient, it will 25 violate due process only when a reasonable likelihood exists that the jury has 26 applied the challenged instruction in a manner that violates the Constitution. 27 Waddington, 555 U.S. at 190-91; Estelle, 502 U.S. at 72. It is not enough that 28 /// 20 1 there is some “slight possibility” that the jury misapplied the instruction. Weeks v. 2 Angelone, 528 U.S. 225, 236 (2000). 3 Errors in jury instructions are subject to harmless error analysis and do not 4 merit habeas relief unless such error had a substantial and injurious effect or 5 influence in determining the jury’s verdict. Hedgpeth v. Pulido, 555 U.S. 57, 616 62 (2008) (per curiam) (citing Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). 7 Similarly, where a state court has determined that a constitutional error is 8 harmless, a federal habeas court may not grant relief unless the error had a 9 substantial and injurious effect on the outcome. See Merolillo v. Yates, 663 F.3d 10 444, 454-55 (9th Cir. 2011), cert. denied, 133 S. Ct. 102 (2012). 11 12 3. Analysis Petitioner contends that instructing with CALJIC 4.71 violated his due 13 process and fair trial rights because the jury could have found him guilty of 14 committing the December 30, 2008 robbery based on evidence of uncharged acts – 15 specifically, Mojica’s testimony that (1) petitioner had taken food from the trailer, 16 without paying, close in time to the charged robberies, and (2) he observed a 17 robbery the day before the last robbery (i.e., on December 29, 2008) from his car – 18 acts which petitioner claims occurred on dates “other than those fixed by the 19 prosecution and relied upon by counsel in preparing the defense case.” (Petition at 20 41-43; see also RT 3006-10 [petitioner’s counsel arguing same in new trial 21 motion, suggesting prejudice from a lack of notice of the uncharged acts]; RT 22 3017-18 [trial court denying new trial motion]; CT 256-70 [new trial motion]). 23 The California Court of Appeal rejected this claim, finding that no 24 prejudicial error occurred. (Lodged Doc. 8 at 13-17). This Court agrees. 25 Petitioner has not shown any harm from instructing with CALJIC 4.71. 26 Any uncertainty from Mojica’s testimony about the date of the last robbery 27 was addressed by Officer Abarca’s testimony (as part of the prosecution’s case), 28 that the officer responded to the trailer regarding a robbery report on December 21 1 30, 2008, and was provided a license plate number by Mojica. (RT 912-14). 2 Given: (a) Officer Abarca’s testimony, (b) the instructions to the jury as to the 3 limited purpose to which they could consider other crimes evidence, (c) the jury’s 4 question about whether the witness victims saw the suspects specifically on the 5 dates charged and argued (i.e., December 21, 22, and 30), and (d) the verdict forms 6 which provided the crimes occurred on December 21, 22, and 30, 2008, as 7 charged, it is not likely that the jury applied CALJIC 4.71 to find petitioner guilty 8 of the December 30, 2008 robbery of Mojica based on finding that petitioner 9 engaged in any other criminal activity between December 22 and 30, 2008. 10 Moreover, as the Court of Appeal noted, the other crimes evidence that 11 petitioner claims could have been used to find he committed the December 30, 12 2008 robbery does not fit with the charge or verdict forms. (See Lodged Doc. 8 at 13 13-16). The December 30, 2008 charge involved robbing Mojica with the 14 personal use of a firearm. (See RT 1897-98 [summary of charges]). There is no 15 reasonable likelihood that the jury misapplied the instructions to Mojica’s 16 testimony that he was not working and sitting in his car the day before the last 17 robbery (i.e., December 29), and observed a person who was not carrying a gun 18 approach the emergency window then leave after robbing Cervantes (and not 19 Mojica), to find petitioner guilty of robbing Mojica on December 30, 2008. Nor is 20 there a reasonable likelihood that the jury misapplied the instructions to find 21 petitioner guilty of robbing Mojica with personal use of a firearm from Mojica’s 22 testimony that petitioner had taken food without paying close in time to the 23 charged robbery when, as petitioner acknowledges (Petition at 38), Mojica said 24 petitioner was never armed when he simply took food. 25 In light of the foregoing, the California Court of Appeal’s rejection of 26 petitioner’s jury instruction claim was not contrary to, or an unreasonable 27 application of, any clearly established federal law, and did not constitute an 28 /// 22 1 unreasonable determination of the facts in light of the evidence presented. 2 Accordingly, petitioner is not entitled to federal habeas relief on this claim. 3 VI. CONCLUSION 4 IT IS THEREFORE ORDERED that: (1) the Petition is denied and this 5 action is dismissed with prejudice; and (2) the Clerk shall enter judgment 6 accordingly. 7 IT IS SO ORDERED.15 8 DATED: December 30, 2014 9 ______________/s/____________________ 10 Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 15 Petitioner is not entitled to an evidentiary hearing in this case. Petitioner has not alleged 23 any material fact, which he did not have a full and fair opportunity to develop in state court, and 24 which, if proved, would show petitioner’s entitlement to habeas relief. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (scope of record for 28 U.S.C. § 2254(d)(1) inquiry limited to 25 record that was before state court that adjudicated claim on the merits); Schriro v. Landrigan, 550 26 U.S. 465, 474 (2007) (if record refutes applicant’s factual allegations or otherwise precludes habeas relief, court not required to hold evidentiary hearing); Gandarela v. Johnson, 286 F.3d 27 1080, 1087 (9th Cir. 2002) (evidentiary hearing properly denied where the petitioner “failed to show what more an evidentiary hearing might reveal of material import”), cert. denied, 537 U.S. 28 1117 (2003). 23
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