Ayala v. Lewis
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Thelton E. Henderson on 08/06/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 8/7/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FAUSTINO AYALA,
No. C 10-4375 TEH (PR)
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Petitioner,
United States District Court
For the Northern District of California
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ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS; DENYING
CERTIFICATE OF APPEALABILITY
v.
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GREG LEWIS, Warden,
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Respondent.
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/
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Pro se Petitioner Faustino Ayala, a state prisoner
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incarcerated at Pelican Bay State Prison, seeks a writ of habeas
corpus under 28 U.S.C. § 2254 to vacate his conviction after a trial
by jury.
For the reasons that follow, the Court denies the
petition.
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On June 23, 2008, a jury found Petitioner guilty of the
second degree murder of Francisco Rodriguez.
The jury also found
that the murder was committed for the benefit of a criminal street
gang and that Petitioner was a principal in a gang murder committed
by the intentional discharge of a firearm.
(CT) 164-67.
1 Clerk’s Transcript
On August 11, 2008, the court sentenced Petitioner to
an indeterminate term of fifteen years to life for the murder, plus
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an additional twenty-five years for the gang-related firearm
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enhancement.
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enhancement was stayed.
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5 CT 1517-18; 1522-23.
The gang participation
Petitioner appealed his conviction and, on February 11,
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2010, the court of appeal affirmed the judgment in an opinion
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certified for partial publication.
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4th 1440 (partially certified for publication); People v. Ayala,
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A122412 (California Court of Appeal, February 11, 2010), Ex. 2.
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May 20, 2010, the California Supreme Court denied review in a one-
United States District Court
For the Northern District of California
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sentence order.
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People v. Ayala, 181 Cal. App.
On
Exs. 3. and 4.
On September 28, 2010, Petitioner filed the instant habeas
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petition raising the following claims:
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trial by jury when the trial court improperly removed a “holdout”
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juror; (2) denial of his right to due process on the ground of
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insufficient evidence to support his second degree murder
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conviction; and (3) denial of his right to a jury trial on the gang-
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related firearm enhancement.1
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that these claims were cognizable and ordered Respondent to show
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cause why a writ of habeas corpus should not be granted.
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Respondent has filed an answer; Petitioner has not filed a traverse.
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II
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(1) denial of his right to a
On February 22, 2011, the Court found
Doc. #3.
The following factual background is taken from the order
of the California Court of Appeal.
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The Sureños and Norteños are rival street gangs.
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Petitioner joined the Sureños when he was twelve years old.
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1997, at the age of thirteen, Petitioner was found guilty of assault
In
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As discussed below, Petitioner’s third claim is a challenge to
an ambiguous jury instruction.
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with a deadly weapon when he stabbed someone in the back at school.
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In 1998, at the age of fourteen, Petitioner was held responsible for
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attempted murder when he gave a gun to another Sureño to shoot at a
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car full of Norteños, and Petitioner’s accomplice fired four or five
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shots at the vehicle.
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California Youth Authority, where he remained until 2005, when he
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was twenty years old.
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gang shooting at issue here.
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The juvenile court placed Petitioner in the
Five months later, he participated in the
The gang attack occurred on the afternoon of July 12,
United States District Court
For the Northern District of California
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2005, in a Norteño neighborhood.
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was standing outside his apartment building talking to his brother-
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in-law and a friend when a blue car drove past.
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former Norteño gang member, but had left the gang a few years
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earlier, when he married.
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it had four or five other Sureño gang members as passengers,
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including Josue O. and Daniel V., who were both fifteen years old.
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At age twenty, Petitioner appeared to be the oldest person in the
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car.
On that day, Francisco Rodriguez
Rodriguez was a
Petitioner was driving the blue car, and
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Josue O. shot and killed Rodriguez.
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in-law, Richard Padilla, described the events at trial.
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testified that a blue car slowly drove past them, then returned at
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an even slower speed.
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driver’s seat, with a Mexican flag bandana covering the lower part
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of his face, and approached Rodriguez, Padilla, and Rodriguez’s
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friend, Jose Navarret.
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approximately eight feet, then raised his hand in a pointing
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gesture.
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companions ran also, but Rodriguez’s foot had a malformation that
Rodriguez’s brotherPadilla
A male exited the car from behind the
The individual approached to within
Padilla thought the individual had a weapon and ran.
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His
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caused him to walk with a “bad limp” and prevented him from running
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fast.
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ground.
Padilla heard a gunshot and returned to see Rodriguez on the
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Navarret testified that a blue car stopped in the street
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and a male with his face covered exited the vehicle from the rear
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seat behind the driver and approached the threesome.
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ran and, seconds later, Navarret heard a gunshot followed by the
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sound of running, a door slamming, and a car taking off.
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returned to see Rodriguez lying on the ground in a puddle of blood.
United States District Court
For the Northern District of California
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The threesome
He
Rodriguez died from a gunshot to the back of his head.
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Petitioner was arrested hours later driving the blue car,
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with Josue O. and another Sureño in the car.
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shooting Rodriguez and said he obtained the gun from a hidden
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compartment in the car.
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which was empty, and a baseball bat and a stabbing shank.
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Josue O. admitted to
A car search found the hidden compartment,
The gun that killed Rodgriguez was recovered later by the
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police, from a Sureño named Juan O.
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V. had telephoned on the afternoon of the shooting and arranged to
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meet him.
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Petitioner and accompanied by Josue O.
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hide two guns and a box of bullets and said that one of the guns had
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been used by Josue O. to shoot a Norteño.
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but a police search the next morning recovered them.
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testified that one of the guns was used to kill Rodriguez.
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Juan O. testified that Daniel
Daniel V. arrived in a blue or gray car driven by
Daniel V. asked Juan O. to
Juan O. hid the weapons,
A criminalist
Petitioner admitted being the driver of the vehicle used
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in the shooting, but denied making any plans to kill a Norteño.
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a statement to the police, which was admitted at trial, Petitioner
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said that, on the morning of the shooting, he had methamphetamine
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In
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for breakfast and was driving the car with five occupants, just
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cruising around.
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to drive because he looked older than the others.
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men that seemed to be Norteños who were disrespecting them and the
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car occupants asked Petitioner to drive by the three Norteños again.
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In his statement, Petitioner said that he knew there “was gonna be
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some funk,” and “some gang related ass shit” when he and his friends
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returned.
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go over there and beat the shit out of the guy.”
Petitioner did not own the car; he had been asked
They passed three
Petitioner said that he thought his friends were “gonna
He knew there was
United States District Court
For the Northern District of California
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“a bat and shit” in the car, but claimed he did not know anyone had
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a gun.
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covered their faces when they returned to confront the threesome.
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Petitioner said he did not know that anyone was going to shoot.
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Petitioner admitted that everyone in the car except him
Petitioner’s girlfriend, Aide Chiyona Romero, testified
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that Josue O., Daniel V. and three other Sureños arrived in a blue
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car on the afternoon of July 12, 2005, and informed Petitioner that
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they just had an argument with Norteños, who threw things at the
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car.
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“payback” and asked him to drive because he looked older.
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The Sureños told Petitioner they wanted to return for
A police officer with expertise in gang behavior testified
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that, at the time of the shooting, there was a gang war being waged
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on the city streets between Sureños and Norteños.
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by gang members upon rivals were frequent and those attacks often
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involved shootings.
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in gang culture was to kill a rival gang member.
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Violent attacks
The expert testified that the “ultimate goal”
The gang expert also testified that there is a gang
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hierarchy, with associates at the bottom and an original gangster
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(OG) on top.
OG status is achieved by those who have been in the
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gang a long time and have committed violent acts on rival gang
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members.
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streets, who directs younger members of the gang.
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testified that Petitioner was the OG and shot caller in the group
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that attacked Rodriguez because he was the oldest and the person who
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had done the most violent acts against rival gang members.
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expert also testified that gang members do not cover their faces in
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most gang attacks because they want notoriety and know that the
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rival gang victim will not report the attack to the police; however,
The officer said the OG is the “shot caller” on the
The gang expert
The gang
United States District Court
For the Northern District of California
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gang members will cover their faces when there is going to be a
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shooting because a murder will be reported by citizens and
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investigated by the police.
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The prosecution’s case consisted primarily of the
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testimony summarized above.
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witnesses.
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argued that Petitioner was guilty of first degree murder because he
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was the “shot caller” in a group that intended to retaliate against
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the Norteños by killing one of their members, and was a knowing
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accomplice in the premeditated shooting.
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prosecutor argued that Petitioner was guilty of second degree murder
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because he admitted to the police that he intended to commit assault
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with a deadly weapon, a baseball bat, and the shooting was a natural
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and probable consequence of the gang assault.
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The defense did not present any
In his closing argument to the jury, the prosecutor
In the alternate, the
Defense counsel argued that Petitioner never intended to
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kill anyone because the evidence only showed that he planned to
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engage in a gang fight, not that he intended to use a dangerous
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weapon in the attack.
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bat in the car, he did not intend to use the bat.
Although Petitioner knew there was a baseball
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On the afternoon of June 16, 2008, the jury began its
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deliberations.
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deliberations, the jury submitted a note to the court asking whether
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drug influence should be considered regarding the defendant’s intent
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to commit the crime.
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of intoxication: “You may consider evidence, if any, of the
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defendants’ voluntary intoxication only in a limited way.
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consider that evidence only in deciding whether the defendant acted
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with intent to kill, and whether the defendant acted with
Approximately one hour after beginning
The court gave an instruction on the relevance
You may
United States District Court
For the Northern District of California
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deliberation and premeditation, and/or the defendant acted with the
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intent to aid and abet the commission of a crime.”
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A122412 at 14.
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People v. Ayala,
On the afternoon of June 17, 2008, the jury wrote to the
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judge: “‘After deliberating half the day, we are at an impasse
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regarding the effect of drugs’ on defendant ‘being responsible
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[] for his actions,’ and that the same juror who has concerns about
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defendant’s intoxication ‘feels that the assault that was to take
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place would not have resulted in a deadly outcome.
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not been able to decide whether [defendant] aided or abetted in this
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crime, we cannot move forward with our deliberations.
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us on what we should do.’”
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and the jury wrote:
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(1) The defendant knew that a deadly weapon was going to be used as
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part of the retaliation and (2) That, because of the influence of
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intoxication, he was not a ‘reasonable person’ to know the probable
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consequence of assault. . . . We don’t think we will overcome this.
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What do we do next?”
Since we have
Please advise
The court asked for further explanation
“We can’t reach unanimous agreement that
People v. Ayala, A122412 at 15.
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On the morning of Wednesday, June 18, 2008, the court
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asked the jurors if additional argument by attorneys concerning
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voluntary intoxication and its application to the facts would help.
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The jurors responded that it would be helpful.
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objected, noting that he had not presented expert testimony to
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support an intoxication defense but did not want to have the
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prosecutor argue the matter unrebutted.
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argued the matter to the jury.
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intoxication was unsupported by the evidence and was not an issue in
Defense counsel
Ultimately, both attorneys
The prosecutor argued that
United States District Court
For the Northern District of California
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the case.
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was intoxicated on the day of the shooting as a lie and argued that
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Petitioner’s conduct showed conscious and intentional acts.
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counsel countered that Petitioner was a long time drug user, was
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intoxicated on the day of the shooting, and his intoxication was
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relevant to his ability to premeditate and form specific intent.
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Jury deliberations resumed.
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He dismissed Petitioner’s statement to the police that he
Defense
Late Wednesday morning, the jury wrote a note to the court
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stating: “We have one juror who feels very strongly that the
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prosecution did not present a case for murder beyond a reasonable
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doubt.
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several attempts from all members to change their view.
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gone ‘round and ‘round, and are not making progress.
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think we can reach agreement on a decision.”
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A122412 at 15-16.
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This one person will not budge from this position, despite
We have
We do not
People v. Ayala,
Before the court could give an additional jury instruction
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on how to conduct deliberations, the jury foreperson sent a note to
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the court suggesting there had been misconduct by the hold-out
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juror.
The foreperson wrote:
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I would like to relay to you my concern that
juror #2 may be influenced by circumstances of
her background that will not allow her to
provide adequate explanation as to why she
cannot follow the law in this case. During our
conversations, juror #2 relayed to us that she
had family members involved in the gang life and
that she had a relative who was in the witness
protection program.
I am concerned that there may be some influence
on her that we cannot be allowed to understand.
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United States District Court
For the Northern District of California
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We are deadlocked in our deliberations because
of her actions and inability to articulate her
position in any detail that would allow us to
continue to deliberate. Were you aware of her
particular situation and open to the possibility
that there would be outside influence to our
deliberation?
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People v. Ayala, A122412 at 16.
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After consulting counsel, the court determined that a hearing
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was necessary to explore the possibility of juror misconduct.
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Defense counsel objected and maintained that the jurors should be
instructed to continue deliberations or the court should declare a
mistrial based on a hung jury.
On the morning of Thursday, June 19, 2008, the court questioned
both the jury foreperson and Juror Number 2 under oath.
The court
began its inquiry of the foreman by stating, “I want you to be very
careful and do not volunteer any information about the determination
of guilt or innocence in this case, that’s not why you are here.
What the court is trying to find out is what the issues are with
regard to the deliberations process.
not content.”
So we’re talking about conduct
People v. Ayala, A122412 at 30.
The foreperson
testified that he was concerned about Juror Number 2’s conduct and
that seven other jurors expressed similar concerns to him.
He said
that Juror Number 2 claimed familiarity with gangs, drugs, and the
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neighborhood where the murder occurred, and interjected her claimed
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expertise of these matters into deliberations.
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testified that Juror Number 2 specifically said that someone in her
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family had been involved with a gang and she had an insight into
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what gangs were about, that one of her relatives was in the witness
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protection program and that she was familiar with drugs and their
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effects on people.
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claimed familiarity with the street where the shooting occurred,
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described its layout, and said it was too narrow for Petitioner’s
The foreperson
The foreperson also stated that Juror Number 2
United States District Court
For the Northern District of California
10
stopping the car in the street to “be such a big deal.”
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foreperson testified that Juror Number 2 relied on her experiences
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“as an explanation for her unwillingness to make any decisions that
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would un-deadlock the jury.”
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The
People v. Ayala at 17.
The court decided to question Juror Number 2 about the
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issues that were at odds with her answers on the questionnaire she
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filled out as part of the voir dire.
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account of the allegations against Petitioner, including the fact
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that he was accused of murder in a Sureño gang shooting.
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questionnaire, Juror Number 2 had indicated that she had no
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knowledge or experience of street gangs, that gang violence had
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never touched her life or the life of anyone close to her, and that
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she had never seen or met any individuals she believed were members
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of a street gang.
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experience with drugs or familiarity with the neighborhood of the
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crime, it identified the street where the crime occurred and broadly
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asked if there were any matters that should be brought to the
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court’s attention, to which Juror Number 2 responded, “no.”
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questioned on voir dire, Juror
The questionnaire provided an
On the
Although the questionnaire did not ask about
When
Number 2 said she did not have
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strong feelings about gangs and, when asked if her ideas about gangs
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were based on media accounts rather than personal experience, she
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replied, “pretty much.”
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People v. Ayala, A122412 at 18.
The court asked Juror Number 2 if, during deliberations,
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she had said that she had a family member in the gang life.
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Number 2 said, “No, I said I knew people from my past.
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30 years ago but that’s nothing that’s current.”
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what she said about having experience with gang life and Juror
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Number 2 replied, “That could have been--that could have been my
Juror
I mean 25 to
The court asked
United States District Court
For the Northern District of California
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lifestyle but I didn’t--don’t associate.”
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did not write anything about her experience with gangs on the
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questionnaire and she replied that it didn’t apply because it was
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twenty or thirty years ago.
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The court asked why she
The court asked Juror Number 2 if she said she had a
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relative in the witness protection program, and she replied that she
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said only that she “knew people.”
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with the neighborhood of the shooting, Juror Number 2 said she did
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not frequent the area, had once “stumbled on to it,” and only became
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familiar with the area by seeing maps in court.
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A122412 at 19.
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When asked about her familiarity
People v. Ayala,
After Juror Number 2 was excused, the prosecutor argued
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that she had lied on the juror questionnaire when she said she had
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never seen or met anyone she believed to be a member of a street
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gang and, because familiarity with gangs was a relevant issue, Juror
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Number 2 should be discharged for misconduct.
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The court recalled Juror Number 2 and asked her to explain
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why she had answered “none” in response to the question which asked
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if she had any knowledge of, or experience with, street gangs, when
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she had told the court that she had known people in the gang life.
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Juror Number 2 replied: “not this particular . . . people” and that
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“it didn’t come back to me until after the fact.”
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“[M]y question would be why didn’t you--I appreciate that you may
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have forgotten about it when you were filling out the questionnaire,
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but why didn’t you bring that up?
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case, it’s all we talked about.
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bring it up during voir dire?”
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didn’t--didn’t feel like it was something that from 25 to 30 years
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United States District Court
For the Northern District of California
1
ago felt that it was. . . . I didn’t know per se the gang life, I
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just knew of.”
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. ‘have you seen or met any individuals who you believe to be
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members of a street gang, please explain,’ and you wrote down,
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‘none.’”
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they say--what was the words used here, wannabees, that’s it.
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Nothing, no one that’s with tattoos or locked up or anything of that
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nature.”
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difficulty reconciling your earlier comment that but for
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circumstances you could have been in a gang life with what you’re
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saying right now.”
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were headed in that direction, if I chose to stick around with them
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I’m sure.”
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people who are actually members, so have you ever in your life met
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any members of a gang?”
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Ayala, A122412 at 20.
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The court asked,
You clearly knew this was a gang
Is there some reason you didn’t
Juror Number 2 responded, “It
The court asked, “Then [the questionnaire] says, . .
Juror Number Two replied, “no persons that are--what do
The court stated, “Okay.
I’m trying to--I’m having
Juror Number 2 replied, “With the wannabees that
The court asked, “Wannabees usually are associated with
Juror Number 2 replied, “No.”
People v.
The court recalled the foreperson to clarify some of his
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statements.
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specific about any experience with gangs and only suggested that she
The foreperson said Juror Number 2 had not been
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knew about gangs, but that she had been specific about the width of
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the street where the shooting occurred and that she told the jurors
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that she had been on a prolonged high on methamphetamine and that a
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person could not be responsible for their actions when they are in
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that state.
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The court recalled Juror Number 2 who admitted mentioning
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her experience on methamphetamine but said she was not relating her
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experience to the evidence.
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voir dire because she didn’t think it was important.
She said she didn’t mention it during
The jury
United States District Court
For the Northern District of California
10
questionnaire did not ask about drugs and Juror Number 2 was not
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asked any questions about drugs during voir dire.
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The prosecutor renewed his request to discharge Juror
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Number 2 and the court recessed to research the matter.
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prosecutor then notified the court that he had several police
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reports indicating that Juror Number 2 had been the victim of four
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crimes between 2000 and 2004, even though on the juror questionnaire
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she had answered no to the question whether she had been the victim
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of a crime.
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restraining order violation when the offender paged and sent
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electronic messages to her.
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sexual battery at work when a grocery store customer grabbed her
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buttocks.
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August 2004, she was the victim of a residential burglary.
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incident report, Juror Number 2 was listed as a witness and her
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personal contact information was stated, which suggested that she
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spoke to the police about each incident.
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Juror Number 2 about this, she testified that she could not recall
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any of the crimes except the burglary, which she remembered only
The
In November 2000, Juror Number 2 was the victim of a
In August 2001, she was the victim of a
In May 2004, someone slashed the tire on her car and, in
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On each
When the court questioned
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when the court asked her about it, and that she did not remember any
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of the crimes at the time she completed the questionnaire.
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The court discharged Juror Number two for misconduct.
court told counsel,
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I had my doubts about [Juror Number 2’s]
credibility before this, but I think this is
very clear that she simply is not credible. She
is not believable to me that she would be the
victim of . . . incidents where she talked to
the police and only recalls one maybe, but
doesn’t recall the others. It’s just simply not
believable. So clearly she made a misconduct
when she’s filling out the questionnaire. I
think there are other things that indicate on
other issues that she was not credible as well,
and of course the court was concerned that she
was essentially becoming a witness in the jury
room, but essentially above and apart from that,
she clearly committed misconduct with not
answering the questionnaire truthfully,
specially with regard to whether she’s been the
victim of a crime.
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United States District Court
For the Northern District of California
The
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People v. Ayala, A122412 at 21-22.
The court replaced Juror Number 2 with an alternate juror
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and the reconstituted jury resumed deliberations that day, June 19,
2008.
The court recessed for a long weekend and deliberations
continued on Monday, June 23, 2008.
That afternoon, the jury
returned its verdict, finding Petitioner guilty of second degree
murder and that the murder was committed for the benefit of a
criminal street gang and that Petitioner was a principal in a gang
murder committed by the intentional discharge of a firearm.
III
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), codified under 28 U.S.C. § 2254, a federal court may
not grant a writ of habeas corpus on any claim adjudicated on the
merits in state court unless the adjudication:
14
“(1) resulted in a
1
decision that was contrary to, or involved an unreasonable
2
application of, clearly established Federal law, as determined by
3
the Supreme Court of the United States; or (2) resulted in a
4
decision that was based on an unreasonable determination of the
5
facts in light of the evidence presented in the State court
6
proceeding.”
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28 U.S.C. § 2254(d).
“Under the ‘contrary to’ clause, a federal habeas court
8
may grant the writ if the state court arrives at a conclusion
9
opposite to that reached by [the Supreme] Court on a question of law
United States District Court
For the Northern District of California
10
or if the state court decides a case differently than [the] Court
11
has on a set of materially indistinguishable facts.”
12
(Terry) v. Taylor, 529 U.S. 362, 412–13 (2000).
13
‘unreasonable application’ clause, a federal habeas court may grant
14
the writ if the state court identifies the correct governing legal
15
principle from [the] Court’s decisions but unreasonably applies that
16
principle to the facts of the prisoner’s case.”
Williams
“Under the
Id. at 413.
17
“[A] federal habeas court may not issue the writ simply
18
because that court concludes in its independent judgment that the
19
relevant state-court decision applied clearly established federal
20
law erroneously or incorrectly.
21
objectively unreasonable.”
22
(2003) (internal quotation marks and citation omitted).
23
in conducting its analysis, the federal court must presume the
24
correctness of the state court’s factual findings, and the
25
petitioner bears the burden of rebutting that presumption by clear
26
and convincing evidence.
27
explained: “[o]n federal habeas review, AEDPA ‘imposes a highly
28
deferential standard for evaluating state-court rulings’ and
Rather, that application must be
Lockyer v. Andrade, 538 U.S. 63, 75-76
28 U.S.C. § 2254(e)(1).
15
Moreover,
As the Court
1
‘demands that state-court decisions be given the benefit of the
2
doubt.’”
3
(2011) (citation omitted).
4
Felkner v. Jackson, __ U.S. __, 131 S. Ct. 1305, 1307
When applying these standards, the federal court should
5
review the “last reasoned decision” by the state courts.
6
Galaza, 297 F.3d 911, 918 n.6 (9th Cir. 2002).
7
California Supreme Court summarily denied relief on Petitioner’s
8
claims, this Court looks to the California Court of Appeal’s
9
February 11, 2010 written decision denying Petitioner’s appeal.
United States District Court
For the Northern District of California
10
Avila v.
Because the
With these principles in mind regarding the standard and
11
scope of review on federal habeas, the Court addresses Petitioner's
12
claims.
13
IV
14
A
15
Petitioner argues that there was insufficient reason for
16
the trial court to remove the “holdout” juror and, thus, his Sixth
17
Amendment right to an impartial jury was violated.
18
The Sixth Amendment guarantees to the criminally accused a fair
19
trial by a panel of impartial jurors.
20
v. Dowd, 366 U.S. 717, 722 (1961).
21
made on the ground that a juror was substituted without
22
good cause.
23
(pre-AEDPA case).
24
findings regarding juror fitness are entitled to special deference,
25
review is for manifest error.
26
excused juror was the sole holdout for acquittal does not in itself
27
invalidate the decision to excuse the juror.
28
establish bias, “a party must first demonstrate that a juror failed
U.S. Const. amend. VI; Irvin
A Sixth Amendment claim may be
Perez v. Marshall, 119 F.3d 1422, 1426 (9th Cir. 1997)
Because, on habeas review, a trial court's
Id.
16
That the trial court knew the
Id. at 1427.
To
1
to answer honestly a material question on voir dire, and then
2
further show that a correct response would have provided a valid
3
basis for a challenge for cause.
4
information may vary, but only those reasons that affect a juror’s
5
impartiality can truly be said to affect the fairness of a trial.”
6
Sanders v. Lamarque, 357 F.3d 943, 949 (9th Cir. 2004) (citing
7
McDonough Power Equip. Inc. v. Greenwood, 464 U.S. 548, 556 (1984)).
8
A trial court may exclude for cause any prospective juror who will
9
be unable to render an impartial verdict based on the evidence.
The motives for concealing
United States District Court
For the Northern District of California
10
Irvin 366 U.S. at 723-24.
11
cause if his views or beliefs would prevent or substantially impair
12
the performance of his duties as a juror in accordance with his
13
instructions and his oath.
14
(1985).
15
“if the request stems from doubts the juror harbors about
16
sufficiency of the government’s evidence .”
17
945.
18
A prospective juror must be removed for
Wainwright v. Witt, 469 U.S. 412, 424
The discharge of a juror during deliberations is improper
Sanders, 357 F.3d at
When dismissing a juror, the trial court must consider
19
the totality of the circumstances.
20
231, 237 (1988).
21
requires “only that the fair import of the Court of Appeal’s
22
opinion” is that it considered the totality of the circumstances.
23
Lopez v. Kernan, 444 Fed. Appx. 962, 964 (9th Cir. 2011).
24
Lowenfeld v. Phelps, 484 U.S.
On habeas review, compliance with Lowenfeld
The state appellate court reviewed the trial court record
25
at length and found that the court’s questioning of Juror Number Two
26
supported a finding of bias.
27
The appellate court stated that Juror Number 2’s “intentional
28
concealment during voir dire shows bias and warranted her discharge
People v. Ayala, A122412 at 24-30.
17
1
. . . . Not only did [Juror Number 2] perjure herself on voir dire,
2
but she repeatedly engaged in obfuscation and evasion when the court
3
confronted her with her lies.
4
impartial, fair-minded juror.”
5
reasoned that
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
These are not the actions of an
Id. at 27.
The appellate court
a finding of bias is supported by more than
[Juror Number 2’s] intentional concealment of
her experiences as a crime victim. We must
consider the case as a whole and determine
whether the trial court relied on ‘evidence
that, in light of the entire record, supports
its conclusion that bias was established.’
Here, [Juror Number 2’s] deceit tended to show
bias because she also concealed her prior gang
experiences and was evasive when confronted with
the inconsistencies between her responses to the
juror questionnaire and later statements to the
court. The trial court specifically found that
[Juror Number 2] was not credible on issues
apart from her experiences as a crime victim.
There also was evidence that [Juror Number 2]
was relying on facts not in evidence. . . .
Here, no intoxication defense was presented at
trial, yet [Juror Number 2] introduced her
personal experience with methamphetamine into
the deliberations and used that extrinsic
information to weigh defendant’s culpability.
The trial court was rightly concerned that
[Juror Number 2] was becoming a witness in the
jury room. Under the circumstances as a whole,
[Juror Number 2] was properly discharged from
the jury and replaced with an alternate juror.
People v. Ayala, A122412 at 29.
21
The state appellate court’s analysis is thorough, cites
22
substantial evidence to support its conclusion that Juror Number 2
23
was biased, and meets the Lowenfeld requirement that it consider the
24
issue of bias under the totality of the circumstances.
25
Citing Sanders, 357 F.3d at 944-45, Petitioner argues that the
26
state court’s denial of his claim was unreasonable because the
27
discharge of Juror Number 2 was prompted by the foreperson’s
28
complaint that, “We have one juror who feels very strongly that the
18
1
prosecution did not present a case for murder beyond a reasonable
2
doubt.”
3
dismissed Juror Number 2 because she felt the government’s evidence
4
was insufficient.
5
Petitioner claims that this shows the court improperly
In Sanders, the court found that the record failed to support
the state’s argument that the juror dismissed by the trial court was
7
biased.
8
responsive and direct answers posed to her by the trial judge, that
9
she was forthcoming with information during voir dire and that there
10
United States District Court
For the Northern District of California
6
was no evidence that she concealed information or that she harbored
11
bias or prejudice during the deliberation process.
12
found it highly significant that the trial court made a preliminary
13
determination that the juror was impartial and objective, and
14
decided to dismiss her only after considering the prosecutor’s
15
argument that he would have challenged her if he had known of her
16
life experiences.
17
prosecutor’s failure to discover any relevant information about the
18
juror was due to his own lack of diligence and not to the juror’s
19
concealment of information.
Id. at 949.
The court noted that the juror provided
Id. at 949-50.
Id.
The court
The Sanders court noted that the
Id. at 950.
20
Here, unlike in Sanders, the trial court found that Juror
21
Number 2 was biased because she failed to disclose significant facts
22
about her background on her juror questionnaire.
23
failed to disclose that she had been involved with gangs, which was
24
particularly relevant to Petitioner’s case.
25
response would likely have provided a valid basis for a challenge
26
for cause.
27
was becoming a witness in the jury room by discussing her knowledge
28
of gang life, her familiarity with the area where the crime was
In particular, she
Thus, a correct
Furthermore, the trial court found that Juror Number 2
19
1
committed and her experience with methamphetamine.
2
the appellate court, Juror Number 2's response to the trial court’s
3
questions appeared to be evasive and lacking in candor, which also
4
supported the trial court’s conclusion that Juror Number 2 was
5
biased.
6
court started questioning the foreperson, it
7
not to talk about the content of the deliberations and, thus, took
8
precautions to limit its inquiry to allegations of misconduct.
9
Therefore, the appellate court’s conclusion that Juror Number 2 was
And, as noted by
Further, as noted by the appellate court, before the trial
warned the foreperson
United States District Court
For the Northern District of California
10
discharged for good cause was not unreasonable in light of the
11
evidence.
12
Citing McDonough Power Equipment, 464 U.S. at 556,
13
Petitioner argues that the dismissal of Juror Number 2 violated his
14
Sixth Amendment right to an impartial jury because any disclosure by
15
the juror that she had been the victim of one or more relatively
16
minor crimes would not have justified a challenge for cause.
17
McDonough held that, to obtain a new trial on the basis of juror
18
bias, “a party must first demonstrate that a juror failed to answer
19
honestly a material question on voir dire, and then further show
20
that a correct response would have provided a valid basis for a
21
challenge for cause.”
22
identified three theories of juror bias based on a misstatement by a
23
juror during voir dire: (1) McDonough-style bias (i.e., juror fails
24
to answer honestly and, had he answered correctly, the information
25
would have provided a basis for a challenge for cause), (2) "actual
26
bias, which stems from a pre-set disposition not to decide an issue
27
impartially," and (3) "implied (or presumptive) bias, which may
28
exist in exceptional circumstances where, for example, a prospective
Id.
However, the Ninth Circuit has
20
1
juror has a relationship to the crime itself or to someone involved
2
in a trial, or has repeatedly lied about a material fact to get on
3
the jury."
4
banc).
5
Fields v. Brown, 503 F.3d 755, 766 (9th Cir. 2007) (en
Petitioner is mistaken that the trial court dismissed
6
Juror Number 2 only because she failed to disclose that she had been
7
the victim of four crimes.
8
several instances in which Juror Number 2 had not been honest about
9
her background.
This nondisclosure was only one of
As stated above, she had failed to disclose that
United States District Court
For the Northern District of California
10
she was familiar with gangs and the neighborhood in which the crime
11
occurred.
12
and the jury foreperson revealed that Juror Number 2 was using her
13
experiences as a witness in the jury room.
14
Number 2's less than candid responses to the trial court’s questions
15
called her credibility and, thus, her objectivity, into question.
16
As discussed previously, the disclosure about her gang
Moreover, the trial court’s questioning of Juror Number 2
Furthermore, Juror
17
experiences alone would likely have been a valid basis for a cause
18
challenge.
19
would apply.
20
The facts also suggest that actual bias or implied bias
Given that the state appellate court thoroughly analyzed
21
Juror Number 2's responses under the totality of the circumstances,
22
and the deference given to the state court’s findings of fact, that
23
court’s rejection of Petitioner’s Sixth Amendment claim was not
24
contrary to or an unreasonable application of clearly established
25
Supreme Court authority or an unreasonable determination of the
26
facts in light of the evidence.
27
is not warranted.
Habeas relief based on this claim
28
21
1
2
B
Petitioner argues that he was deprived of due process of
3
law because the evidence was insufficient to support a conviction of
4
second degree murder based on the “natural and probable
5
consequences” doctrine.
6
acknowledged that he intended to join the others in the car in a
7
group confrontation, he only intended that it involve fists and
8
possibly the baseball bat that was found in the car, and disclaimed
9
all knowledge of a gun.
Petitioner argues that, although he
Because the intended crime with fists or a
United States District Court
For the Northern District of California
10
baseball bat did not occur, Petitioner argues that there were no
11
“natural and probable consequences” for which he can be liable.
12
The Due Process Clause "protects the accused against
13
conviction except upon proof beyond a reasonable doubt of every fact
14
necessary to constitute the crime with which he is charged."
15
Winship, 397 U.S. 358, 364 (1970).
16
that the evidence in support of his state conviction cannot be
17
fairly characterized as sufficient to have led a rational trier of
18
fact to find guilt beyond a reasonable doubt therefore states a
19
constitutional claim which, if proven, entitles him to federal
20
habeas relief.
21
However, “Jackson claims face a high bar in federal habeas
22
proceedings . . .”
23
2062 (2012) (per curiam).
24
state court conviction does not determine whether it is satisfied
25
that the evidence established guilt beyond a reasonable doubt.
26
Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510
27
U.S. 843 (1993).
28
viewing the evidence in the light most favorable to the prosecution,
In re
A state prisoner who alleges
Jackson v. Virginia, 443 U.S. 307, 321, 324 (1979).
Coleman v. Johnson, __ U.S. __, 132 S. Ct. 2060,
A federal court reviewing collaterally a
The federal court "determines only whether, 'after
22
1
any rational trier of fact could have found the essential elements
2
of the crime beyond a reasonable doubt.'" Payne, 982 F.2d at 338
3
(quoting Jackson, 443 U.S. at 319).
4
fact could have found proof of guilt beyond a reasonable doubt, has
5
there been a due process violation.
6
Payne, 982 F.2d at 338.
7
Only if no rational trier of
Jackson, 443 U.S. at 324;
The state appellate court first reviewed the jury
8
instruction on the natural and probable consequences doctrine.
9
jury instruction specified:
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
One who aids and abets in the commission of a
crime is not only guilty of that crime, but is
also guilty of any other crime committed by a
principal which is a natural and probable
consequence of the crime originally aided and
abetted. Before you may decide whether the
defendant is guilty of the crime of second
degree murder or voluntary manslaughter, you
must decide whether he is guilty of aiding and
abetting an assault with a deadly weapon . . .
To prove that the defendant is guilty of second
degree murder or voluntary manslaughter, the
People must prove beyond a reasonable doubt,
that one, the defendant knowingly and
intentionally aided and abetted as assault with
a deadly weapon. Two, during the commission of
an assault with a deadly weapon, a coparticipant in that offense committed the crime
of murder or voluntary manslaughter, and three,
under all of the circumstances, a reasonable
person in the defendant’s position would have
known that the commission of the murder or
voluntary manslaughter was a natural and
probable consequence of the commission of an
assault with a deadly weapon.
A co-participant in a crime is the perpetrator
or anyone who aided and abetted the perpetrator.
It does not include a victim or innocent
bystander. A natural and probable consequence
is one that a reasonable person would know is
likely to happen if nothing unusual intervenes.
In deciding whether a consequence is natural and
probable, consider all of the consequences
established by the evidence. If the murder or
voluntary manslaughter was committed by the co23
The
1
participant for a reason independent of the
common plan to commit an assault, then the
commission of murder or voluntary manslaughter
was not a natural and probable consequence of
the assault.
2
3
4
5
8 RT 1157-58.
The appellate court then reviewed the evidence that supported a
6
finding that Petitioner knowingly and intentionally aided and
7
abetted an assault with a deadly weapon.
8
was the testimony of the gang expert who explained that, at the time
9
of the shooting, a gang war was being waged between Sureños and
The most potent evidence
United States District Court
For the Northern District of California
10
Norteños which included violent attacks by gang members upon rival
11
gang members and that these attacks often involved shootings.
12
expert testified that the ultimate goal in gang culture was to kill
13
a rival gang member.
14
long-time Sureño member with a violent past.
15
girlfriend testified that Sureño gang members told him, shortly
16
before the shooting, that they had had an argument with Norteños.
17
They told Petitioner that they wanted to return for payback, and
18
then Petitioner got into the car with the five Sureños.
19
expert testified that gang members would take guns with them when
20
entering a rival gang’s territory to retaliate.
21
after the shooting showed that the car Petitioner had driven
22
contained two guns, a box of bullets, a baseball bat and a stabbing
23
shank.
24
members when he drove back to confront them.
The
Evidence established that Petitioner was a
Petitioner’s
The gang
Evidence seized
Petitioner admitted he intended to attack the rival gang
25
The appellate court then addressed Petitioner’s argument that
26
the murder was not foreseeable because he only intended to assault
27
the rival gang members with fists or a baseball bat and did not know
28
24
1
or intend that Josue O. would shoot Rodriguez with a gun.
2
stated:
3
4
5
6
7
8
9
The court
In finding defendant guilty of second degree
murder, the jury may well have found that
defendant knew that Josue intended to shoot at
Rodriguez (while lacking the specific intent to
kill) and that Rodriguez’s death was a
foreseeable consequence of the shooting.
Defendant told police he did not know there were
guns in the car but the jury was free to
disbelieve defendant on this point. A rational
trier of fact could conclude that the car
occupants did know there was a gun in the car
and planned to shoot a Norteño with the
intention of either killing or injuring the
victim.
United States District Court
For the Northern District of California
10
11
12
13
14
15
Even if the jury credited defendant’s claimed
ignorance of a gun--the jury could still find
murder to be a foreseeable consequence of the
violent gang confrontation. . . . In the context
of a gang war, a jury could rationally conclude
that an attack by six gang members wielding a
baseball bat upon rival gang members could
escalate into a fatal confrontation.
17
The fact that the baseball bat was never actually
used in the confrontation does not change the
analysis. Defendant was still properly found liable
for the homicide as a natural and probable
consequence of the planned gang assault.
18
. . .
19
Defendant asserts that “[t]here was no evidence
from which a jury could reasonably conclude that
if [defendant] only intended a fistfight, even a
fight with a bat or a club, he should have
expected that someone in his car would use a
gun.” While the assertion may have some force
in a common fistfight, it has no force in the
context of the ongoing gang war. Our Supreme
Court has recognized that the gang-related
nature of an assault--even one without weapons-may provide the trier of fact with sufficient
evidence to conclude that ‘escalation of the
confrontation to a deadly level was reasonably
foreseeable.’
16
20
21
22
23
24
25
26
27
People v. Ayala, A122412 at 11-13.
28
25
1
The state appellate court properly applied the Jackson standard
2
to the facts of Petitioner’s case and found sufficient evidence to
3
support the jury’s finding that Petitioner was guilty of second
4
degree murder through the application of the natural and probable
5
consequences doctrine.
6
this Court cannot say that the state appellate court’s determination
7
was contrary to, or involved an unreasonable application of Supreme
8
Court authority or resulted in a decision that was based on an
9
unreasonable determination of the facts in light of the evidence
Under AEDPA’s heightened level of deference,
United States District Court
For the Northern District of California
10
presented in the state court proceeding.
11
habeas relief is denied.
12
Therefore, this claim for
C
13
Petitioner characterizes his third claim as the deprivation of
14
his right to a jury trial on the gang-related weapon enhancement as
15
an aider and abettor because the instruction given to the jury did
16
not require it to find that he was a “principal” in the murder.
17
However, in this claim Petitioner is challenging an ambiguous jury
18
instruction, rather than the deprivation of the right to a trial by
19
jury.
20
An allegation that a jury instruction is incorrect under state
21
law does not form a basis for federal habeas corpus relief.
22
Estelle v. McGuire, 502 U.S. 62, 67 (1991).
23
ambiguous instruction, the appropriate inquiry is whether there was
24
"a reasonable likelihood" that the jury applied the instruction in a
25
way that relieved the State of its burden to prove every element of
26
the crime beyond a reasonable doubt.
27
California, 494 U.S. 370, 380 (1990)).
28
likelihood that a jury's application of the challenged instruction
26
In reviewing an
Id. at 72 (quoting Boyde v.
There is a reasonable
1
violated the Constitution if its use "'so infected the entire trial
2
that the resulting conviction violates due process.'"
3
Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
Id. (quoting
4
Moreover, a petitioner must show not only that there was a
5
reasonable likelihood that the jury misapplied the law in a way that
6
violated the Constitution, but also that the state court was
7
unreasonable in deciding otherwise.
8
Middleton v. McNeil, 541 U.S. 433, 436 (2004) (per curiam).
9
instruction "must be considered in the context of the instructions
United States District Court
For the Northern District of California
10
as a whole and the trial record."
11
Estelle, 502 U.S. at 72;
The
Cupp, 414 U.S. at 147).
12
Estelle, 502 U.S. at 67 (citing
Petitioner’s claim is based on the fact that, in order for
13
him to be subject to the aider and abettor enhancement under
14
California Penal Code § 12022.53, the jury was required to find that
15
he was a principal in the commission of the murder, but the jury was
16
instructed that it only had to find that he was “charged as a
17
principal within the meaning of Penal Code § 12022.5(e).”
18
that because the correct requirement was not submitted to the jury,
19
the jury did not make the finding that he was a principal in the
20
crime and, thus, the enhancement finding cannot stand.
21
He argues
The appellate court found Petitioner’s argument to be
22
untenable.
23
consecutive twenty-five year-to-life enhancement is added to the
24
sentence if a person murders with the personal and intentional
25
discharge of a firearm, see Cal. Pen. Code § 12022.53(a)(1), (d),
26
and, if a criminal street gang is involved, all principals,
27
including the shooter and accomplices, receive the sentence
28
enhancement, see Cal. Pen. Code § 12022.53(d), (e)(1).
The court explained that, under California law, a
27
The
1
appellate court acknowledged that, to be liable as an aider and
2
abettor under California Penal Code § 12022.53(d), the defendant
3
must be a principal in the offense, and that, in its verdict, the
4
jury found that “the allegation that Defendant Faustino Ayala was
5
charged as a principal in the commission of the above offense . . .
6
to be TRUE.”
7
the verdict form was “less than perfect,” but found that the
8
imperfection was minor.
9
The appellate court acknowledged that the language of
The appellate court noted that the jury returned three separate
United States District Court
For the Northern District of California
10
verdict forms: one for the offense of murder; one for the gang-
11
related firearm enhancement at issue here; and one for a gang
12
participation enhancement.
13
verdict form contained the language at issue, that Petitioner was
14
“charged” as a principal.
15
found in the first verdict form that Petitioner was guilty of
16
murder, it necessarily found that he was a principal in the
17
commission of murder.
18
The gang-related firearm enhancement
The court reasoned that, because the jury
Viewing the instruction at issue in the context of the
19
instructions as a whole, there is not "a reasonable likelihood" that
20
the jury applied the instruction in a way that relieved the State of
21
its burden to prove every element of the crime beyond a reasonable
22
doubt and the state appellate court’s finding was not unreasonable.
23
As noted by the appellate court, even though the jury instruction
24
and the verdict form included the language that Petitioner was
25
“charged” as a principal in the murder, rather than the language
26
that Petitioner “was a principal” in the murder, the error was
27
minor.
Because the jury separately found Petitioner guilty of
28
28
1
second degree murder, it necessarily found him to be a principal in
2
the murder.
3
Petitioner next argues that he only aided and abetted an
4
assault because he lacked the required intent to aid and abet the
5
murder and, thus, the jury, if it had been required to find that he
6
was a principal in the murder, would not have been able to do so.
7
Citing People v. Prettyman, 14 Cal. 4th 248, 259 (1996), the
8
appellate court explained that, under California Penal Code § 31,
9
which provides the definition of a principal, an aider and abettor
United States District Court
For the Northern District of California
10
of a crime is a “principal” and shares the guilt of the actual
11
perpetrator,
12
the appellate court explained that an aider and abettor is liable
13
not only for the offense he or she aids or abets, but also for any
14
other reasonably foreseeable offense committed by the person who was
15
aided and abetted.
16
applied to Petitioner as follows:
17
18
19
20
21
22
23
Citing People v. Croy, 41 Cal. 3rd 1, 15 n.5 (1985),
The appellate court summed up the law as it
In short, a principal in the commission of
assault with a deadly weapon is a principal in
the commission of murder if murder was a
reasonably foreseeable consequence of the
assault, as it was here. Defendant was a
principal in the murder and thus subject to the
gang-related firearm enhancement for his
confederate’s intentional and personal discharge
of a gun that killed Rodriguez.
People v. Ayala, A122412 at 32.
The interpretation of a state statute by the highest state
24
court is binding on federal courts.
25
911, 916 (1997).
26
other federal tribunal has any authority to place a construction on
27
a state statute different from the one rendered by the highest court
28
of the state.
Johnson v. Fankell, 520 U.S.
Neither the United States Supreme Court nor any
Id.
29
1
The appellate court’s interpretation of “principal” and
2
aiding and abetting based upon California Supreme Court authority is
3
binding on this Court and, thus, its interpretation of the
4
California statutory scheme defining “principle” and liability of an
5
aider and abetter is not contrary to or an unreasonable application
6
of Supreme Court authority.
7
Petitioner was an aider and abettor of the assault, he was liable
8
for the murder as a reasonable foreseeable consequence of the
9
assault.
United States District Court
For the Northern District of California
10
Under this statutory scheme, because
Therefore, the appellate court’s denial of Petitioner’s
11
challenge to the jury instruction was not contrary to or an
12
unreasonable application of Supreme Court authority or an
13
unreasonable determination of the evidence.
14
entitled to habeas relief on this claim.
15
16
17
18
Petitioner is not
V
For the foregoing reasons, the Petition for a Writ of
Habeas Corpus is DENIED.
Further, a Certificate of Appealability is DENIED.
See
19
Rule 11(a) of the Rules Governing Section 2254 Cases.
20
has not made “a substantial showing of the denial of a
21
constitutional right.”
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demonstrated that “reasonable jurists would find the district
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court’s assessment of the constitutional claims debatable or wrong.”
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Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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appeal the denial of a Certificate of Appealability in this Court
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but may seek a certificate from the Court of Appeals under Rule 22
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of the Federal Rules of Appellate Procedure.
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Rules Governing Section 2254 Cases.
28 U.S.C. § 2253(c)(2).
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Petitioner
Nor has Petitioner
Petitioner may not
See Rule 11(a) of the
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The Clerk is directed to enter Judgment in favor of
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Respondent and against Petitioner, terminate any pending motions as
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moot and close the file.
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IT IS SO ORDERED.
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DATED
08/06/2012
THELTON E. HENDERSON
United States District Judge
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United States District Court
For the Northern District of California
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