Daniel Arenas v. James Walker, No. 5:2011cv01499 - Document 23 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS by Magistrate Judge Marc L. Goldman: (See document for details.) (Attachments: # 1 part 2) (rla)
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1 defendant was acquitted of possession of cocaine, but convicted of 2 "telephone 3 cocaine. 4 error, 5 setting aside inconsistent verdicts. Id. at 65; see also Harris v. 6 Rivera, 7 allegedly inconsistent state court verdicts, that "[i]nconsistency 8 in a verdict is not a 9 Masoner v. Thurman, 996 F. 2d 1003, 1005 (9th Cir. 1993) ("The general Id. facilitation" at 65-66. stating that 454 U.S. offenses that required possession of The Supreme Court rejected this claim of "nothing in the Constitution would require" 339, 345 (1981) (holding, in a case involving sufficient reason for setting it aside"); 10 rule is that jury verdicts 11 ground that they are inconsistent."). Thus, 12 never held that inconsistent verdicts violate the Constitution. 13 ... are insulated from review on the the Supreme Court has In Powell, the Supreme Court specifically left open the question 14 of whether a defendant who "is convicted of two crimes, 15 guilty verdict on one count logically excludes a finding of guilt on 16 the other," may properly challenge a jury verdict. Id. at 69 n. 8; 17 see also Ferrizz v. Guirbino, 18 2005). 19 process challenge to a jury verdict on the ground that convictions 20 of multiple counts are inconsistent with one another will not be 21 considered if the defendant cannot demonstrate that the challenged 22 verdicts are necessarily logically inconsistent." Masoner, 996 F.2d 23 at 1005. In applying Powell, 432 F.3d 990, 993 & n. 5 where a (9th Cir. the Ninth Circuit has held that "a due 24 Petitioner has failed to demonstrate that the two convictions - 25 the true finding on the sentencing enhancement for personally and 26 intentionally discharging a firearm with respect to the officer in 27 count 8, and the grossly negligent discharge of a firearm charge in 28 count 11 - are logically or legally inconsistent. A true finding on 7 1 the sentencing enhancement 2 requires 3 intentional discharge of 4 crime. See People v. Palmer, 133 Cal.App.4th 1141, 1148-49 (Cal.App. 5 2005); Cal. Penal Code 6 first petition for writ of habeas corpus, this Court found that the 7 evidence was sufficient to allow a rational trier of fact to find 8 beyond 9 intentionally discharged a firearm in connection with his assault on proof a beyond a Cal. reasonable Penal doubt Code of the 12022.53 (c) § personal and the firearm during the commission of a 12022.53(c); CALJIC 17.19.5. In Petitioner's § reasonable police officers. 4 under that doubt personally 10 the 11 obviously believed the police officers' 12 intentionally 13 pointed and to reach that verdict, fired the The crime of discharge of a also requires a showing the and Petitioner's testimony that the gun went off accidentally. 14 In order Petitioner jury testimony that Petitioner gun at them and rejected firearm in a grossly negligent 15 manner 16 intentionally 17 negligent manner which could cause injury or death to a person. See 18 People v. Alonzo, 13 Cal.App.4th 535, 538-39 (1993), see also CALJIC 19 9.03.3. Thus contrary to Petitioner's assertions, both crimes require 20 proof of a willful and intentional discharge of a firearm and are 21 therefore not legally inconsistent as Petitioner claims. discharged a that firearm, the defendant albeit only wilfully and in a grossly 22 Nor can it be said that convictions of the two offenses are 23 factually inconsistent. It must be remembered that there were other 24 individuals in the restaurant aside from the police officers when the 25 shot 26 inconsistent because the jury could reasonably find that Petitioner was fired. The verdicts are not factually or logically 27 28 4Arenas v. Walker, Case No. EDCV 08-00943-GAF (MLG) , Report and Recommendation filed on August 20, 2009, pp. 26-29. 8 1 personally and intentionally discharged the firearm at the officers 2 as 3 semiautomatic firearm, and also that he discharged the firearm in a 4 grossly 5 restaurant while he was being pushed to the ground. Thus, there is no 6 "inevitable logical inconsistency" between the two verdicts. Ferrizz, 7 432 8 habeas corpus relief on this claim. 5 9 10 part of offense negligent F. 3d at c. the manner of assault with on a respect 994 .. For this reason, to police the officer with a civilians in the Petitioner is not entitled to The Admission of Gang Expert Testimony Did Not Violate Petitioner's Right to Due Process 11 Petitioner contends that the admission at trial of evidence that 12 he was a member of a criminal street gang was unduly prejudicial and 13 therefore violated his right to due process, particularly given that 14 this Court later determined that there was insufficient evidence to 15 support the gang enhancement allegation. (Pet. at 5, 7.) 16 As a preliminary matter, the Court notes that Petitioner's claim 17 that the trial court erred in allowing gang expert testimony does not 18 raise a cognizable claim for federal habeas corpus relief. This claim 19 of error arises out of state law, and it is well established that 20 allegations state law errors are not cognizable on federal habeas 21 corpus review. See Estelle v. McGuire, 22 not the province of a federal habeas court to re-examine state-court 502 U.S. at 71-72. "[I]t is 23 24 25 26 27 28 5 The Court also notes that while review of count 11 might seem to warrant application of the discretionary concurrent sentence doctrine, as the sentence was stayed on this conviction, see Benton v. Maryland, 395 u.s. 784, 790-91 (1969); Cheeks v. Gaetz, 571 F.3d 680, 689-91 (7th Cir. 2009); Van Gelden v. Field, 498 F.2d 400, 403 (9th Cir. 1974) (holding federal courts may decline to review a conviction carrying a concurrent sentence when one concurrent sentence is found valid), the argument has not been raised by Respondent and the Court will assume that the conviction on count 11 carries collateral parole or enhanced sentencing consequences. 9 1 determinations on state law questions." Id. at 68. 2 Even assuming that Petitioner has stated a cognizable federal 3 habeas claim, he has failed to show that the admission of gang expert 4 testimony violated his federal constitutional rights or deprived him 5 of a fundamentally fair trial. The Supreme Court has never clearly 6 held that "admission of irrelevant or overtly prejudicial evidence 7 constitutes a due process violation sufficient to warrant issuance of 8 the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). 9 A writ of habeas corpus will be granted for the erroneous admission 10 of evidence "only where the 'testimony is almost entirely unreliable 11 and 12 competent 13 shortcomings. If' Mancuso v. 14 2002) 15 the erroneous admission of evidence violates due process only when 16 "there are no permissible inferences the jury may draw from the 17 evidence." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.), amended on 18 other grounds by 421 F.3d 1154 (9th Cir. 2005) 19 de Kamp, 926 F.2d 918, 920 (9th Cir. 1991)). Even then, evidence must 20 "be of such quality as necessarily prevents a fair trial." Jammal, 21 926 F.2d at 920. The due process inquiry in federal habeas review is 22 whether the admission of evidence was arbitrary or so prejudicial 23 that 24 McGuire, 25 Cir. 1995). Generally, only if there are no permissible inferences 26 that the jury may draw from the evidence can its admission violate 27 due process. See Jammal, 926 F.2d at 920. 28 // the to factfinder uncover, and the adversary system will recognize, and Olivarez, take due account 292 F.3d 939, 956 not be of its (9th Cir. (quoting Barefoot v. Estelle, 463 U.S. 880, 899 (1983)). Thus, it rendered the trial (quoting Jammal v. Van fundamentally unfair. See Estelle v. 502 U.S. at 67; Walters v. Maass, 45 F.3d 1355, 1357 (9th 10 1 In this case, there clearly were permissible inferences that the 2 jury could draw from the gang evidence. The information alleged that 3 Petitioner committed counts 1 and 5-11 for the benefit of a criminal 4 street gang. The gang evidence was therefore relevant and admissible 5 at the time of trial to prove the gang allegations, notwithstanding 6 this Court's subsequent determination that there was insufficient 7 evidence to support those allegations. 8 Even assuming that the admission of the gang expert testimony 9 rose to the level of a due process violation, it cannot be said that 10 such error had a 11 verdict as to the other charges. Brecht v. Abrahamson, 507 U.S. 619, 12 637-38 (1993); see also Fry v. Plilar, 551 U.S. 112, 121-122 (2007). 13 The 14 Petitioner's then-girlfriend, testified that he punched her in the 15 cheek 16 Elizabeth Ruiz, Gutierrez's sister-in-law, testified that, when she 17 tried to calm Petitioner down, he pointed a gun directly at Ruiz's 18 chest and tried to fire, 19 addition, the police officers who responded to the call, Officers 20 Katelhut, Signorio, 21 Petitioner repeatedly pointed his gun at police and tried to fire, 22 although 23 Petitioner fired his gun at the police officers either as he was 24 falling or while on the ground. 25 evidence after the substantial and injurious effect on the of guilt accusing gun her was overwhelming. of having affair with Gutierrez, his uncle. although the gun apparently jammed. Wessely, jammed an Consuelo jury's Hajj each and time, West, and all further testified testified In that that (Lodgment 16 at 1-6.) Given the overwhelming evidence establishing Petitioner's guilt 26 of the crimes for which he was convicted, any possible error in 27 admitting the gang evidence cannot be said to have had a substantial 28 and injurious effect on the jury's verdict. 11 Brecht, 507 U.S. at 1 637-38; Fry, 551 U.S. 112 at 121-122. Accordingly, Petitioner is not 2 entitled to habeas corpus relief on this claim. 3 4 IV. Order 5 The petition for writ of habeas corpus is DENIED. In addition, 6 because Petitioner cannot make a colorable claim that jurists of 7 reason 8 petition, 9 Appealability. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003); Slack 10 would find debatable Petitioner is or not wrong the entitled decision to a denying the Certificate of v. McDaniel, 529 U.S. 473, 484 (2000). 11 12 Dated: May 2, 2012 13 14 15 Marc L. Goldman United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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