Manuel Penaloza v. G.D. Lewis, No. 2:2013cv08696 - Document 14 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. (See document for details.) (iva)
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Manuel Penaloza v. G.D. Lewis Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MANUEL PENALOZA, 12 13 14 15 16 Petitioner, v. G.D. LEWIS, Warden, Respondent. 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-8696-SP MEMORANDUM OPINION AND ORDER 18 I. 19 INTRODUCTION 20 On November 25, 2013, petitioner Manuel Penaloza filed a Petition for Writ 21 of Habeas Corpus by a Person in State Custody (“Petition”). Petitioner challenges 22 his 2011 convictions in the Los Angeles County Superior Court for two counts of 23 first degree murder, carjacking, and grand theft of an automobile, for which he was 24 sentenced to two terms of life without the possibility of parole, plus 50 years to 25 life, plus 12 years 8 months. 26 Petitioner raises three grounds for relief in the Petition: (1) insufficient 27 evidence to prove petitioner deliberated before killing the victims; (2) the 28 1 Dockets.Justia.com 1 prosecution committed misconduct by misstating the facts and law, and petitioner’s 2 trial counsel was ineffective for failing to object to the prosecutorial misconduct; 3 and (3) the evidence was insufficient to support petitioner’s conviction for grand 4 theft of an automobile, and petitioner’s trial counsel was ineffective for conceding 5 that the prosecution had proved the charge. For the reasons discussed below, none 6 of petitioner’s claims merits habeas relief. The Petition will therefore be denied. 7 II. 8 STATEMENT OF FACTS1 9 At about 11:00 p.m. on October 27, 2006, Francisco Regalado and Joey 10 Malta (the decedents) were at petitioner’s home in Highland Park. The three were 11 friends, but petitioner murdered Regalado and Malta in petitioner’s detached 12 bedroom by shooting each of them once in the head, i.e., near the right eye. A dark 13 circle around Regalado’s gunshot wound was “muzzle tattooing,” indicating the 14 gun was touching, or extremely close to, Regalado’s skin when petitioner fired the 15 gun. Regalado died within about three hours of the shooting. 16 At some point, petitioner put the decedents in a car. Joanna Arellano 17 testified she was Malta’s girlfriend and had a close relationship with Regalado. 18 Arellano had seen Regalado’s car previously and had seen him drive it. Arellano 19 identified a photograph (People’s exh. No. 3) as “the picture of Regalado, 20 Frankie’s car.” 21 About 11:30 p.m., Heidi Muenzenmayer was driving in Pasadena when she 22 saw a Honda colliding with objects. The Honda’s hood raised and the Honda was 23 on fire. The Honda stopped and petitioner climbed out one of its windows. 24 Muenzenmayer identified photographs (People’s exh. Nos. 2 & 3) as depicting the 25 1 The facts set forth are drawn substantially verbatim from the California Court of Appeal’s decision on direct appeal. Lodged Doc. No. 6 at 2-4 (footnotes 27 omitted). The Court of Appeal’s statement of facts is presumed correct. 28 U.S.C. 28 § 2254(e)(1); Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009). 26 2 1 Honda. Muenzenmayer exited her car and approached petitioner to help. 2 Petitioner told Muenzenmayer that he was drunk. He then carjacked her vehicle, 3 seriously injuring her in the process. Petitioner later crashed Muenzenmayer’s car 4 into another vehicle, then left on foot. A paramedic summoned to the scene where 5 petitioner had left the Honda saw Malta and Regalado inside it. The paramedic 6 identified a photograph (People’s exh. No. 2) as depicting the Honda. Malta was 7 dead. Regalado was alive but later died.2 8 On October 27, 2006, a police officer searched petitioner’s bedroom. The 9 officer had been there on many previous occasions. On or about the above date, 10 the bedroom was unusually clean. It was freshly painted, and it had been cleaned 11 with bleach. A window was open, a ceiling fan was operating, and a rug had been 12 removed. The blood of Regalado and the blood of Malta were found in the 13 bedroom. 14 Petitioner was extradited from Mexico. On March 31, 2010, he told police 15 the following. On the night of the shooting, petitioner was paranoid and high on 16 drugs. He felt Regalado and Malta were disrespecting him, so petitioner fired two 17 warning shots into the wall to scare them.3 Regalado and Malta continued 18 whispering stupid remarks. Petitioner, believing they were going to kill him, shot 19 both with a .22-caliber gun he later discarded. 20 Petitioner also told police the following. After the shootings, petitioner 21 2 22 23 24 25 26 27 The medical examiner who conducted Malta’s autopsy testified Malta had additional contusions on his body, but the medical examiner did not know how those injuries were caused and denied he was able to testify they were consistent with a fight or struggle. The medical examiner who conducted Regalado’s autopsy testified Regalado had additional nonfatal injuries, and that medical examiner did not offer an opinion as to how those injuries were caused. Each medical examiner testified the decedent died as a result of a gunshot wound to the head. 3 A detective who examined the walls of the bedroom “right after” the 28 shootings denied he had seen gunshots in the walls. 3 1 cleaned his bedroom with bleach. He put the decedents in a car and stole it.4 The 2 lady (later identified as Muenzenmayer) was at the wrong place at the wrong time. 3 Petitioner entered her car and left. The decedents had not deserved to die, and the 4 shootings, like the injury to Muenzenmayer, were accidents. Petitioner regretted 5 he had not shot a person named Mata. Petitioner still wanted to kill Mata because 6 Mata had said things petitioner disliked. 7 In defense, Dr. Ronald Markman, a psychiatrist, testified petitioner had a 8 history of drug use, and such use could cause paranoia, impulsive behavior, and 9 aggression, and could impair deliberation. Markman opined petitioner’s actions 10 were premeditated but not deliberated. 11 III. 12 PRIOR PROCEEDINGS 13 On September 21, 2011, a jury convicted petitioner of two counts of first 14 degree murder (Cal. Penal Code § 187(a)), one count of car jacking resulting in 15 great bodily injury (Cal. Penal Code §§ 215(a), 12022.7(a)), and one count of 16 grand theft of an automobile (Cal. Penal Code § 487(d)(1)), as well as found true a 17 multiple murder special circumstance (Cal. Penal Code § 190.2(a)(3) and gun 18 allegations (Cal. Penal Code § 12022.53(d)). Lodged Doc. No. 1, Clerk’s 19 20 21 22 23 24 25 26 27 28 4 Petitioner gave conflicting statements as to whether he stole the car. After petitioner told police he fired two shots at the wall, the following occurred: “[Petitioner:] . . . And then I shot them [unintelligible] and their attention. And they got so fucking, they got so fucking two dead bodies. . . . I just got the fuck out of there. I don’t know how, how . . . [¶] [Detective:] Remember . . . putting them in the car? [¶] [Petitioner:] [Unintelligible] [¶] [Detective:] Remember the car you put them into [petitioner]? [¶] [Petitioner:] Fucking [unintelligible] someone’s car right there, yeah. [Unintelligible] fucking car. They stole the fucking car. I didn’t, I didn’t steal the fucking [unintelligible]. I stole it. [¶] [Detective:] It belonged to Francisco. [¶] [Petitioner:] A GT or right there or . . . [¶] [Detective:] No, I don’t know if he took the key off . . . he wasn’t alive at the time to tell you, ‘no.’ [¶] [Petitioner:] [Unintelligible]” 4 1 Transcript (“CT”) at 224-27, 229; Lodged Doc. No. 1, Supplemental Clerk’s 2 Transcript (“Supp. CT”) at 6-9. The trial court sentenced petitioner to two 3 consecutive terms of life without the possibility of parole, plus fifty years to life, 4 plus twelve years and eight months in prison. Supp. CT at 1-9. 5 Petitioner, represented by counsel, appealed the conviction to the California 6 Court of Appeal. Lodged Doc. No. 3. Petitioner raised the following arguments: 7 (1) the evidence was insufficient to prove petitioner deliberated before killing the 8 victims; (2) prosecutorial misconduct for misstating the law and the evidence, and 9 ineffective assistance of counsel for trial counsel’s failure to object to the 10 prosecutorial misconduct; and (3) insufficient evidence to support petitioner’s 11 conviction for grant theft of an automobile, and ineffective assistance of counsel 12 for conceding guilt on the theft charge. Id. On October 4, 2012, the Court of 13 Appeal, in a reasoned decision, affirmed the judgment. Lodged Doc. No. 6. 14 Petitioner filed a petition for review in the California Supreme Court, 15 presenting the same three claims. Lodged Doc. No. 7. On January 3, 2013, the 16 California Supreme Court summarily denied the petition for review. Lodged Doc. 17 No. 8. 18 IV. 19 PETITIONER’S CLAIMS 20 In the Petition, petitioner raises the following grounds for relief: 21 1. 22 23 Insufficient evidence to support a finding that petitioner deliberated before killing the victims; 2. (a) The prosecutor committed misconduct during closing argument by 24 misstating the law and the evidence, and (b) ineffective assistance of 25 trial counsel for failing to object to the prosecutorial misconduct; and 26 27 3. (a) Insufficient evidence to prove grand theft of an automobile, and (b) ineffective assistance of counsel for conceding petitioner was 28 5 1 guilty of this charge. 2 V. 3 STANDARD OF REVIEW 4 This case is governed by the Antiterrorism and Effective Death Penalty Act 5 of 1996 (“AEDPA”). AEDPA provides that federal habeas relief “shall not be 6 granted with respect to any claim that was adjudicated on the merits in State court 7 proceedings unless the adjudication of the claim – 8 (1) resulted in a decision that was contrary to, or involved an unreasonable 9 application of, clearly established Federal law, as determined by the Supreme 10 Court of the United States; or 11 (2) resulted in a decision that was based on an unreasonable determination of 12 the facts in light of the evidence presented in the State court proceeding.” 28 13 U.S.C. § 2254(d)(1)-(2) (emphasis added). 14 In assessing whether a state court “unreasonably applied” Supreme Court 15 law or “unreasonably determined” the facts, the federal court looks to the last 16 reasoned state court decision as the basis for the state court’s justification. See Ylst 17 v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991); 18 Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Here, the California 19 Court of Appeal’s opinion on October 4, 2012 stands as the last reasoned decision 20 on Grounds One through Three(a). But although the California Court of Appeal 21 provided a reasoned decision on Grounds One and Three(a), this court will conduct 22 an independent review of the record because those claims present challenges to the 23 sufficiency of the evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 24 1997). 25 In addition, with respect to a claim for which there is no reasoned state court 26 decision, the federal habeas court will conduct an independent review of the record 27 to determine whether the state court decision was contrary to, or an unreasonable 28 6 1 application of, controlling United States Supreme Court precedent. See Haney v. 2 Adams, 641 F.3d 1168, 1171 (9th Cir. 2011); Allen v. Ornoski, 435 F.3d 946, 9543 55 (9th Cir. 2006). Even in the absence of a prior reasoned decision, however, 4 § 2254(d)’s limitations on granting habeas relief remain. Harrington v. Richter, 5 562 U.S. 86, 98, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (“Where a state court’s 6 decision is unaccompanied by an explanation, the habeas petitioner’s burden still 7 must be met by showing there was no reasonable basis for the state court to deny 8 relief.”). Because there is no reasoned decision on Ground Three(b), this court will 9 also conduct an independent review of the record to determine whether the state 10 court decision was objectively unreasonable as to this issue. 11 VI. 12 DISCUSSION 13 A. Petitioner Is Not Entitled to Habeas Relief on His Claims Regarding the 14 Sufficiency of the Evidence 15 In Ground One, petitioner challenges the sufficiency of the evidence to 16 support his first degree murder convictions, arguing that the evidence did not 17 establish deliberation. In Ground Three(a), petitioner challenges the sufficiency of 18 the evidence to prove grand theft of an automobile. 19 In Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 61 L. Ed. 2d 560 20 (1979), the United States Supreme Court held that federal habeas corpus relief is 21 not available to a petitioner who claims the evidence was insufficient to support his 22 conviction unless he can show that, viewing the record in the light most favorable 23 to the prosecution, “no rational trier of fact could have found proof of guilt beyond 24 a reasonable doubt.” In evaluating such claims, the court must presume, even if it 25 does not affirmatively appear in the record, that the jury resolved any conflicting 26 inferences in favor of the prosecution. Wright v. West, 505 U.S. 277, 296-97, 112 27 S. Ct. 2482, 120 L. Ed. 2d 225 (1992) (citing Jackson, 443 U.S. at 326). Under 28 7 1 AEDPA, this court reviews the state court’s decision “with an additional layer of 2 deference,” granting relief only when the state court’s judgment was contrary to, or 3 an unreasonable application of, the Jackson standard. Juan H. v. Allen, 408 F.3d 4 1262, 1274-75 (9th Cir. 2005). The court will not re-weigh evidence, reassess 5 witness credibility, or resolve evidentiary conflicts on habeas review; that is the 6 province of the jury. See Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (“A 7 jury’s credibility determinations are . . . entitled to near-total deference under 8 Jackson.”) (citing Schlup v. Delo, 513 U.S. 298, 330, 115 S. Ct. 851, 130 L. Ed. 2d 9 808 (1995)); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). 10 When presented with an insufficient evidence claim, the federal habeas court 11 must apply the Jackson standard “with explicit reference to the substantive 12 elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 13 n.16. Thus, the reviewing court first looks at state law to establish the elements of 14 the crime. See Juan H., 408 F.3d at 1278 n.14. The federal court then turns to the 15 federal question as to whether the state court was objectively unreasonable in its 16 application of Jackson. Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). The 17 AEDPA and Jackson standards pose a “double dose of deference that can rarely be 18 surmounted.” Id. 19 1. 20 In Ground One, petitioner argues the evidence presented at trial was Deliberation 21 insufficient to support his first degree murder convictions because it did not prove 22 he deliberated before killing the victims. Petition at 6, Ex. A at 36-49, Ex. E at 23 147-59. 24 The California Court of Appeal rejected petitioner’s claim, finding the 25 evidence that petitioner was bothered by the victims’ remarks, claimed to have 26 fired warning shots, then shot both victims in the head without adequate 27 provocation, did not seek medical help for the victims, and attempted to conceal 28 8 1 evidence of the crimes supported a finding of premeditation and deliberation. 2 Lodged Doc. No. 6 at 5-6. 3 In California, murder is of the first degree when it is willful, premeditated, 4 and deliberate. Cal. Penal Code § 189. The California Supreme Court recently 5 discussed the deliberation element in conjunction with the premeditation 6 requirement for first degree murder: 7 “In the context of first degree murder, premeditation means 8 “‘considered beforehand’” (People v. Mayfield (1997) 14 Cal.4th 668, 9 767, 60 Cal.Rptr.2d 1, 928 P.2d 485) and deliberation means a 10 “‘careful weighing of considerations in forming a course of action 11 . . .’” (People v. Solomon (2010) 49 Cal.4th 792, 812, 112 Cal.Rptr.3d 12 244, 234 P.3d 501). ‘The process of premeditation and deliberation 13 does not require any extended period of time.’ (Mayfield, at p. 767, 14 60 Cal.Rptr.2d 1, 928 P.2d 485 [the true test of premeditation is the 15 extent of the reflection, not the length of time].) “‘Thoughts may 16 follow each other with great rapidity and cold, calculated judgment 17 may be arrived at quickly. . . .’” (Ibid.; see id. at pp. 767-768, 60 18 Cal.Rptr.2d 1, 928 P.2d 485 [where defendant wrestled the gun from 19 and fatally shot an officer during a brief altercation, the jury could 20 reasonably conclude that ‘before shooting [the officer] defendant had 21 made a cold and calculated decision to take [the officer's] life after 22 weighing considerations for and against’]; People v. Rand (1995) 37 23 Cal.App.4th 999, 1001-1002, 44 Cal.Rptr.2d 686 [aiming weapon at 24 victims whom shooter believed to be rival gang members constituted 25 sufficient evidence of premeditation and deliberation].)” (People v. 26 Shamblin (2015) 236 Cal.App.4th 1, 10, 186 Cal.Rptr.3d 257.) 27 People v. Salazar, 63 Cal. 4th 214, 245, 202 Cal. Rptr. 3d 368, 371 P.3d 161 28 9 1 (2016), petition for cert. filed (U.S. Nov. 10, 2016) (No. 16-6812). The California 2 Supreme Court also has explained that the killing of a victim “by a single gunshot 3 fired from a gun placed against his head” is sufficient evidence of deliberation. 4 People v. Romero, 44 Cal. 4th 386, 401, 79 Cal. Rptr. 3d 334, 187 P.3d 56 (2008) 5 (execution-style murder sufficient to prove deliberation where victim “was killed 6 by a single gunshot fired from a gun placed against his head”). 7 Here, petitioner’s actions were of the type considered by the Romero court to 8 be proof of deliberation. Pasadena Police Detective Keith Gomez testified that 9 Malta appeared to have been shot in the head at close range, and that Regalado had 10 a “contact shot” to his head. Lodged Doc. No. 2 (Reporter’s Transcript (“RT”)) at 11 1012, 1018-19. Both victims had been shot near their right eye. RT at 1012, 1018. 12 This would have required petitioner to approach the victims with a gun one at a 13 time, point his gun in the same area on each victims’ head, and fire. The very 14 nature of the wounds indicates petitioner engaged in a calculated execution-style 15 murder. 16 In addition, in his interview with police, petitioner gave an account of the 17 evening that indicated his thought process and reasoning for killing the victims. 18 Petitioner explained that the victims had been disrespecting him and “fucking with 19 [his] head.” CT at 172-74. Petitioner warned the victims to stop, possibly even 20 firing warning shots, but when they did not stop he killed them.5 CT at 172-76, 21 178-79, 184. This scenario involving a series of warnings before petitioner acted 22 further supports a finding of premeditation and deliberation. 23 After shooting them, petitioner did not call for medical help for the victims, 24 as he might have if the crime were truly impulsive or an accident. Instead, 25 5 Petitioner claimed he first fired two shots at the walls to scare the victims before shooting them in their heads. CT at 178-79. But the police did not find any 27 bullet holes in the walls of petitioner’s room, leaving petitioner’s story of warning 28 shots uncorroborated. RT at 1229. 26 10 1 petitioner cleaned with bleach, painted portions of his apartment, and fled with the 2 bodies. See RT at 998-1000, 1024-28. This too supports the finding of 3 deliberation. 4 To the extent petitioner argues the jury should have given greater weight to 5 the defense expert’s testimony that drug use may have prevented petitioner from 6 deliberating, petitioner is merely asking the court to re-weigh the evidence. The 7 court must not engage in such weighing of the evidence. Marshall v. Lonberger, 8 459 U.S. 422, 434, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983) (a federal habeas court 9 has “no license” to evaluate the credibility or reliability of a witness who testified 10 in state court); Bruce, 376 F.3d at 957 (a “jury’s credibility determinations are [] 11 entitled to near-total deference” on federal habeas review); Walters, 45 F.3d at 12 1358 (a reviewing court “must respect the province of the jury to determine the 13 credibility of witnesses”). The fact that there may also have been evidence to 14 support a different verdict does not mean the evidence was insufficient to support 15 the jury’s finding that the murders were deliberate and premeditated. 16 All of this evidence, when viewed in the light most favorable to the 17 prosecution, was sufficient to prove petitioner deliberated before killing the 18 victims. 19 2. 20 In Ground Three(a), petitioner argues the prosecution presented insufficient Grand Theft of an Automobile 21 evidence to prove petitioner guilty of grand theft of an automobile for taking 22 Regalado’s Honda. Specifically, petitioner argues the prosecution failed to prove 23 the vehicle belonged to another and failed to prove petitioner drove the vehicle 24 away without the owner’s consent. Petition at 6-7, Ex. A at 65-69, Ex. E at 17425 78. 26 The California Court of Appeal denied petitioner’s claim on direct review, 27 finding sufficient evidence that the vehicle belonged to Regalado and that 28 11 1 petitioner took the vehicle by means of trespass and without Regalado’s consent. 2 Lodged Doc. No. 6 at 11-12. 3 Under California law, theft by larceny “is committed by every person who 4 (1) takes possession (2) of personal property (3) owned or possessed by another, 5 (4) by means of trespass and (5) with intent to steal the property, and (6) carries the 6 property away.” People v. Davis, 19 Cal. 4th 301, 305, 79 Cal. Rptr. 2d 295, 965 7 P.2d 1165 (1998). Theft of an automobile is classified as grand theft. Cal. Penal 8 Code § 487(d)(1). 9 First, petitioner’s claim fails to the extent he argues the evidence did not 10 prove who owned the Honda. Malta’s girlfriend, who also was friends with 11 Regalado, identified the Honda as belonging to Regalado. RT at 663, 673-74. Her 12 testimony was not contradicted by any other evidence and thus was sufficient for 13 the jury to conclude the Honda petitioner drove away from the crime scene 14 belonged to Regalado. 15 Petitioner’s claim also fails to the extent he argues the evidence did not 16 support a finding that petitioner drove the Honda away without the owner’s 17 consent. First, the prosecution was not required to prove lack of consent, but rather 18 had to prove petitioner took Regalado’s vehicle by means of trespass. See Davis, 19 19 Cal. 4th at 305. Because “[t]he act of taking personal property from the 20 possession of another is always a trespass unless the owner consents to the taking” 21 of the property (id. (footnote omitted)), evidence of consent was material only to 22 the extent petitioner could have used it as an affirmative defense. See People v. 23 Brock, 143 Cal. App. 4th 1266, 1275 n.4, 49 Cal. Rptr. 3d 879 (2006) (“while a 24 lack of consent is not an essential element of [theft by larceny], consent is an 25 affirmative defense”). Thus, the prosecution was not required to prove that 26 Regalado did not give consent for petitioner to drive his vehicle. 27 Moreover, even if the prosecutor was required to prove lack of consent, the 28 12 1 evidence was sufficient to support such a finding. Petitioner shot Regalado in the 2 head before driving away in Regalado’s car. It was thus reasonable for the jury to 3 infer that Regalado was not physically capable of giving petitioner permission to 4 drive his car. It was also reasonable for the jury to conclude that Regalado, even if 5 physically able to give consent, would not voluntarily have granted access to his 6 car to the man who had just shot him in the head. Finally, when petitioner was 7 interviewed by police he admitted he “stole” Regalado’s car. CT at 179. This 8 evidence was sufficient to support a finding that petitioner did not have Regalado’s 9 permission to drive his car. 10 For these reasons, the state courts’ denial of petitioner’s sufficiency of the 11 evidence claims was not contrary to clearly established federal law or an 12 unreasonable determination of the facts. Petitioner is therefore not entitled to relief 13 on Ground One or Ground Three(a). 14 B. Petitioner Is Not Entitled to Habeas Relief on His Claim of 15 Prosecutorial Misconduct 16 In Ground Two(a), petitioner argues the prosecutor committed misconduct 17 during closing arguments by misstating the law and the evidence. Specifically, 18 petitioner argues the prosecutor committed misconduct when (1) she analogized 19 deliberation to a driver of a vehicle entering an intersection and deciding whether 20 to stop or proceed, (2) described the manner in which petitioner killed the victims 21 without evidentiary support for her description, and (3) equated the intent to kill 22 with premeditation. Petition at 6, Ex. A at 50-62, Ex. E at 163-72. 23 The California Court of Appeal denied petitioner’s claim, finding that 24 petitioner forfeited his prosecutorial misconduct arguments by failing to object at 25 trial, and that in any event his claim failed on the merits because no prosecutorial 26 misconduct occurred. Lodged Doc. No. 6 at 6-10. 27 28 13 1 1. Ground Two(a) Is Procedurally Defaulted 2 Respondent argues that petitioner’s claim is procedurally defaulted in light 3 of the state court’s finding of forfeiture. Answer at 16-19. 4 A federal court will not review a claim if a state court dismissed the claim on 5 an adequate and independent state law ground, whether substantive or procedural. 6 Walker v. Martin, 562 U.S. 307, 315-16, 131 S. Ct. 1120, 179 L. Ed. 2d 62 (2011); 7 Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 115 L. Ed. 2d 640 8 (1991). In order for the procedural bar to apply, the opinion of the last state court 9 rendering a judgment in the case must clearly and expressly state that its judgment 10 rests on a state law ground. Harris v. Reed, 489 U.S. 255, 264 n.10, 109 S. Ct. 11 1038, 103 L. Ed. 2d 308 (1989); Jackson v. Giurbino, 364 F.3d 1002, 1006-07 (9th 12 Cir. 2004). The Ninth Circuit has repeatedly held that California’s 13 contemporaneous objection rule, which deems an objection forfeited if not raised 14 in a timely fashion, is an adequate and independent state ground for dismissal. See, 15 e.g., Tong Xiong v. Felker, 681 F.3d 1067, 1075 (9th Cir. 2012); Paulino v. Castro, 16 371 F.3d 1083, 1093 (9th Cir. 2004); see also Cal. Evid. Code § 353. 17 Here, the Court of Appeal “clearly and expressly” stated that petitioner 18 forfeited his claim by failing to object at trial. Lodged Doc. No. 6 at 6. Because 19 respondent has met the burden of pleading and proving the procedural bar is 20 adequate and independent, the burden shifts to petitioner to show cause for the 21 default and actual prejudice resulting from the alleged constitutional violation, or 22 that failure to consider the claim will result in a fundamental miscarriage of justice. 23 See Carter v. Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004) (citing Bennett v. 24 Mueller, 322 F.3d 573, 586 (9th Cir. 2003)); see also Gray v. Netherland, 518 U.S. 25 152, 162, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996). Petitioner has not responded 26 to respondent’s procedural default argument, and has not shown cause and 27 prejudice, or a fundamental miscarriage of justice. As such, Ground Two(a) is 28 14 1 procedurally defaulted. 2 2. Ground Two(a) Also Fails on the Merits 3 A petitioner’s due process rights are violated when prosecutorial misconduct 4 “‘so infected the trial with unfairness as to make the resulting conviction a denial 5 of due process.’” Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. 6 Ed. 2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. 7 Ct. 1868, 40 L. Ed. 2d 431 (1974)); see Drayden v. White, 232 F.3d 704, 713 (9th 8 Cir. 2000). To determine whether the misconduct violated due process, a 9 reviewing federal habeas court must consider the misconduct in light of the entire 10 proceedings. See, e.g., Hall v. Whitley, 935 F.2d 164, 165 (9th Cir. 1991) 11 (examining the prosecutor’s remarks in context of the entire trial). Even if the 12 prosecutor’s conduct violates due process, habeas relief will only be granted if the 13 petitioner can establish that the misconduct had a substantial and injurious effect or 14 influence in determining the jury’s verdict. Shaw v. Terhune, 380 F.3d 473, 478 15 (9th Cir. 2004) (applying harmless error test of Brecht v. Abrahamson, 507 U.S. 16 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), to prosecutorial misconduct 17 claims). 18 First, petitioner complains of the following statement by the prosecutor 19 during closing argument about premeditation and deliberation: 20 Now, let’s talk about in real life, in our every day life, an 21 example of deliberation and premeditation to make it easy for you to 22 understand. 23 Every day as we drive, we make decisions. We get to a stop 24 sign. We get to railroad crossing. And we decide, the first thing we 25 think about is, we got to look to the left. We’re at a stop sign. We got 26 to look to the right. And then we decide if it’s safe for us to enter the 27 road. We go forward. Well, that split second decision, ladies and 28 15 1 gentlemen, is deliberation. It is safe to enter, involves premeditation. 2 You weigh beforehand, “Should I enter the street? Should I stop?” 3 That’s premeditation. So deliberation and premeditation, we use 4 every day in our lives. We stop, we look left and right, we go 5 forward. That’s a split second of a decision that we make. That 6 makes a deliberate and premeditated action of passing the stop sign or 7 stopping at the railroad. 8 RT at 1530-31. 9 The prosecutor’s statement did not so infect petitioner’s trial with unfairness 10 as to amount to misconduct. The prosecutor’s statement was merely an everyday 11 example of making a potentially life or death decision within a split second. This 12 was not an incorrect statement of premeditation and deliberation under California 13 law. See People v. Williams, 16 Cal. 4th 153, 224, 66 Cal. Rptr. 2d 123, 940 P.2d 14 710 (1997) (deliberation can occur in “a split second”); cf. Thompson v. Lewis, 15 2011 WL 3443984, *8-9 (C.D. Cal. June 27, 2011) (no ineffective assistance of 16 counsel for failing to object to prosecutor’s use of a stop sign example to 17 demonstrate premeditation and deliberation because it was not an incorrect 18 statement of California law). 19 Next, petitioner challenges the following statements by the prosecutor as a 20 comment on facts not in evidence. The prosecutor initially argued: 21 That cold, calculated approaching of the victims with a loaded 22 firearm, pointing a gun to their heads, and firing that weapon is a 23 deliberation process. He’s thinking. “They didn’t get it. They didn’t 24 get my warning.” “What am I going to do? I’m going to end this. 25 I’m going to show those guys what I need. I need respect. They can’t 26 be fuckin’ with my head anymore.” 27 So he walked up to one of the victims, and he pulled the trigger. 28 16 1 And he pulled the trigger and shot him execution style. It’s not a shot 2 to the leg, to the arm, to the lower torso, up in the air to try to scare the 3 guys and say, “Get the fuck out of my house.” No, it’s not. As 4 Penaloza said, they were fuckin’ with his head to a point where he had 5 to do something. And what he did was an execution style murder of 6 the first victim. 7 But after he shot the first victim, he didn’t stop. He didn’t stop 8 there. He walked over to the second victim, he pulled the gun, the 9 same way, same location, right to the head, “boom.” Pulled the 10 trigger. Another execution style [s]hot to the second victim’s head. 11 And now why is the location of the wound important? Because that 12 shows a cold, calculated deliberate intent to kill. . . . 13 RT at 1534-35. The prosecutor later added to the argument: 14 The only person who goes to put the muzzle to the head of a 15 victim and pulls the trigger execution style is a person who 16 deliberated, and premeditated, and decided to kill. 17 RT at 1591. 18 Petitioner argues that there was no evidence to support the prosecutor’s 19 arguments and that “[i]t was just as probable [petitioner] shot both men, without 20 deliberation, from a single stationary position in the small, cluttered room.” 21 Petition, Ex. A at 56, Ex. E at 166. Petitioner also argues the evidence did not 22 support the prosecutor’s characterization of the killings as “execution style” 23 because petitioner did not force the victims into “a markedly indefensible position” 24 before killing them. Petition, Ex. A at 56-57, Ex. E. at 166-67. 25 The prosecutor’s comments were permissible inferences drawn from the 26 evidence presented at trial. See Menendez v. Terhune, 422 F.3d 1012, 1037 (9th 27 Cir. 2005) (prosecutors may argue reasonable inferences from the evidence 28 17 1 presented). While there was no evidence of the exact thoughts that went through 2 petitioner’s mind as he carried out the murders, or evidence that he had to walk up 3 to each victim to shoot them in the head, these are reasonable inferences from the 4 evidence. It is not probable, as petitioner suggests, that he was able to shoot both 5 victims in the head, near their right eyes, and from very close proximity, “from a 6 single, stationary position.” Rather, it was reasonable for the prosecutor to infer 7 that petitioner had to position himself near each victim as he carried out the 8 killings. It was also reasonable for the prosecutor to infer that the manner of 9 killing suggested that petitioner deliberated before shooting the victims in the head. 10 Moreover, the prosecutor did not commit misconduct by characterizing the killings 11 as execution style murders. See Romero, 44 Cal. 4th at 401 (approaching victim 12 without provocation and shooting him in the back of the head was “execution13 style” killing). 14 Finally, petitioner argues the prosecutor improperly equated intent to kill 15 with premeditation. The prosecutor’s statements, and the context in which they 16 were made, are as follows. The prosecutor first argued: 17 Well, Dr. Markman, of course, got up on the stand and said, his 18 interpretation and definition of deliberation is different than ours. 19 There’s only one interpretation, you know, of verbiage from the Penal 20 Code deliberation. And it’s in the jury instruction. And it says: 21 “Carefully weighing the consideration of pros and cons, 22 and knowing the consequences of your consideration.” 23 Yes, Dr. Markman himself said that on cross-examination, that given 24 that hypothetical, that person who he kept talking about how paranoid 25 these people get, and how tweaked out these people get, he himself 26 admitted that those people do their acts intentionally. Intent. And if 27 you do an act intentionally, and if you then surround the intentional 28 18 1 act with his actions, his words, it screams out to you, deliberate, 2 premeditated first degree murder of Francisco Regalado and Joe 3 Malta. 4 RT at 1541. The prosecutor later added to this argument: 5 When you’re looking at Joe Malta’s gunshot wound, as Dr. 6 Selser testified, it’s right on his right eye. And as she said, front to 7 end, front to back, a little bit upward, just slightly upward. Now why 8 is that important? That’s important because that shows his specific 9 intent. That shows his execution style, deliberated, premeditated 10 murder of Joe Malta. That shows that he had to go up to Malta, put 11 the gun to the eye, and pull the trigger in cold-calculated murder. 12 RT at 1549-50. 13 It is clear from the prosecutor’s statements that she was not equating intent 14 to kill by itself with premeditation and deliberation. Rather, the prosecutor was 15 arguing that evidence of petitioner’s intent to kill, coupled with the circumstances 16 of the killings – “[petitioner’s] actions, his words” – demonstrated premeditation 17 and deliberation. This was not misconduct, but merely was the prosecutor 18 presenting the evidence to the jury and arguing how the evidence supported the 19 elements of first degree murder. 20 For all the foregoing reasons, the state courts’ denial of petitioner’s 21 prosecutorial misconduct claim was not contrary to clearly established federal law 22 or an unreasonable determination of the facts. Consequently, petitioner is not 23 entitled to relief on Ground Two(a). 24 C. Petitioner Is Not Entitled to Habeas Relief on His Claims of Ineffective 25 Assistance of Counsel 26 Finally, in Grounds Two(b) and Three(b), petitioner contends his trial 27 counsel was ineffective. In Groung Two(b), petitioner faults counsel for failing to 28 19 1 object to the prosecutorial misconduct petitioner alleges in Ground Two(a). 2 Petition at 6, Ex. A at 62-64, Ex. E at 172-74. In Ground Three(b), petitioner 3 argues his counsel was ineffective for conceding during closing argument that the 4 prosecutor had presented sufficient evidence to support the charge of grand theft of 5 an automobile. Petition at 6-7, Ex. A at 68, Ex. E at 177. 6 The California Court of Appeal rejected claim Two(b) on direct appeal, 7 finding, because the prosecutor did not commit misconduct, petitioner’s counsel 8 was not ineffective for failing to object. Lodged Doc. No. 6 at 10-11 n.8. The 9 Court of Appeal did not address claim Three(b). 10 The Sixth Amendment guarantees a right to effective assistance of counsel. 11 See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 12 (1984). To establish an ineffective assistance of counsel claim, a petitioner must 13 establish: (1) counsel’s performance fell below an “objective standard of 14 reasonableness” under prevailing professional norms; and (2) the deficient 15 performance prejudiced the defense. Id. at 687. “The inquiry under Strickland is 16 highly deferential and ‘every effort [must] be made to eliminate the distorting 17 effects of hindsight, to reconstruct the circumstances of counsel’s challenged 18 conduct, and to evaluate the conduct from counsel’s perspective at the time.’” 19 Greenway v. Schriro, 653 F.3d 790, 802 (9th Cir. 2011) (quoting Strickland, 466 20 U.S. at 689); see also Earp v. Cullen, 623 F.3d 1065, 1074 (9th Cir. 2010). 21 Regarding the first prong, there is a “strong presumption that counsel’s 22 conduct falls within the wide range of reasonable professional assistance.” 23 Strickland, 466 U.S. at 689. As for the second prong, a petitioner must show a 24 reasonable probability that, but for counsel’s unprofessional errors, the result 25 would have been different. Id. at 694; Towery v. Schriro, 641 F.3d 300, 315 (9th 26 Cir. 2010). “A reasonable probability is a probability sufficient to undermine 27 confidence in the outcome.” Williams v. Taylor, 529 U.S. 362, 391, 120 S. Ct. 28 20 1 1495, 146 L. Ed. 2d 389 (2000) (quoting Strickland, 466 U.S. at 694). The focus 2 of the prejudice inquiry is “whether counsel’s deficient performance renders the 3 result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. 4 Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). 5 First, with respect to Ground Two(b), as discussed above the prosecutor did 6 not commit misconduct during closing arguments. Petitioner’s counsel was not 7 ineffective for failing to make a meritless objection. See Juan H. v. Allen, 408 F.3d 8 1262, 1273 (9th Cir. 2005) (“trial counsel cannot have been ineffective for failing 9 to raise a meritless objection”). 10 Second, with respect to Ground Three(b), petitioner correctly asserted his 11 counsel conceded his guilt on the automobile theft charge. See RT at 1577-78, 12 1582-83. But as discussed above, the prosecution presented sufficient evidence to 13 support petitioner’s conviction for grand theft of an automobile, and petitioner 14 presented no evidence to the contrary. Under such circumstances, it was a 15 reasonable strategy for petitioner’s counsel to concede petitioner’s guilt as to the 16 relatively minor charge of grand theft of an automobile, so that counsel could 17 maintain credibility with the jury and focus the jury’s attention on the arguments 18 against convicting petitioner of the much more serious first degree murder charges. 19 Moreover, even if counsel’s strategy were unreasonable, petitioner cannot 20 prove prejudice. Again, the prosecutor presented sufficient evidence to prove 21 petitioner guilty of grand theft of an automobile, and there was no contrary 22 evidence. Given the evidence, petitioner cannot show the jury’s verdict would 23 have been different had his counsel not conceded guilt on this issue. 24 Accordingly, the state courts’ denial of petitioner’s ineffective assistance of 25 counsel claims was not contrary to clearly established federal law or an 26 unreasonable determination of the facts. Therefore, petitioner is not entitled to 27 relief on Grounds Two(b) and Three(b). 28 21 1 VII. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment be entered denying the 4 Petition and dismissing this action with prejudice. 5 6 7 DATED: November 30, 2016 8 SHERI PYM United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22
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