Gerrel Looney v. G. Swarthout, No. 2:2015cv08201 - Document 68 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER OF DISMISSAL by Magistrate Judge Alka Sagar. IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED and this action is dismissed with prejudice. (See Order for complete details) (afe)
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Gerrel Looney v. G. Swarthout Doc. 68 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 11 GERREL LOONEY, Petitioner, 12 v. 13 14 CASE NO. CV 15-8201 AS MEMORANDUM DECISION AND ORDER OF DISMISSAL JOSIE GASTELO,1 Warden Respondent. 15 16 17 INTRODUCTION 18 19 On October 20, 2015, Gerrel Looney (“Petitioner”), a 20 California state prisoner proceeding pro se, filed a Petition for 21 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. 22 1). 23 asserting that the only claim raised was partially unexhausted. (Dkt. No. On February 11, 2016, Respondent filed a Motion to Dismiss, 24 25 26 27 28 1 Josie Gastelo, Warden of the California Men’s Colony in San Luis Obispo, California, where Petitioner is currently incarcerated, is substituted for G. Swartout, whom Petitioner named in his Petition. Fed. R. Civ. P. 25(d). Dockets.Justia.com 1 (Dkt. 2 Petitioner’s state proceedings. (Dkt. No. 16). No. 15). Respondent also lodged documents from 3 4 On February 16, 2016, the Court found that the claim was 5 partially unexhausted and afforded Petitioner the opportunity to 6 address 7 voluntarily 8 request a stay. 9 filed a motion to stay, which the Court denied for lack of good 10 cause on June 8, 2016, and afforded Petitioner an opportunity to 11 select any of the other options available. the defects, dismiss voluntarily the unexhausted (Dkt. No. 18). dismiss portion the of Petition, the claim, or On June 7, 2016, Petitioner (Dkt. Nos. 23-24). 12 13 On December 13, 2016, Petitioner filed another motion to 14 stay, requesting that the Court stay the Petition and hold it in 15 abeyance so that he could exhaust two prosecutorial misconduct 16 claims. (Dkt. 17 December 28, 18 Petitioner’s state proceedings. 19 2017, 20 Petition 21 Petition)” (Dkt. No. 56), which the Court construed as a Reply to 22 the Opposition (“Reply”) (Dkt. No. 57). 23 clarified 24 unexhausted portion of Ground One, and moving for a stay of the 25 action 26 appeared to seek leave to amend the Petition in order to add 27 claims 28 violations - claims that were alleged in an unfiled California No. 41). 2016, and Petitioner Stay that pursuant for filed Pending he to was Respondent lodged a ineffective an supplemental opposition documents (Dkt. Nos. 43-44). “Motion for Completion “asking Kelly.” filed (Reply 2 Stay Exhaustion for assistance a from On June 2, (Move to Amend Declaration of In his Reply, Petitioner Option at of on 9). counsel 3 dismissing Petitioner and due the also process 1 Supreme Court habeas petition attached to the motion. 2 13, 2017, Respondent filed a Sur-Reply. 3 August 14, 2017, Petitioner filed an objection to the Sur-Reply, 4 in which he stated that he had recently filed a second habeas 5 petition with the California Supreme Court.2 On June (Dkt. No. 58). On (Dkt. No. 59). 6 7 On August 24, 2017, the Court denied Petitioner’s motion to 8 stay as moot, denied Petitioner’s request for leave to file an 9 amended petition as untimely, and denied Respondent’s motion to 10 dismiss, finding that the first California Supreme Court habeas 11 petition exhausted Petitioner’s claim.3 12 Court found that Plaintiff’s first habeas petition filed with the 13 California Supreme Court on April 11, 2016, which presented a 14 claim for “insufficient evidence on all charges that I’ve been 15 found guilty of,” sufficiently challenged the sufficiency-of-the- 16 evidence claim asserted in the Petition. (Dkt. No. 60). The (Id. at 18). 17 18 On November 19 Petition, 20 authorities. 21 documents with 7, 2017, an accompanying (Dkt. No. 65). from Petitioner’s Respondent filed memorandum an Answer of to points the and Respondent also lodged supplemental state proceedings, including the 22 23 24 25 26 27 28 2 2017. The second habeas petition was denied on September 13, (Lodgment 9). 3 The first habeas petition was denied on May 25, 2016. (Lodgment 7). 3 1 Clerk’s 2 (Dkt. No. 66). Transcript (“CT”) and Reporter’s Transcript (“RT”).4 Petitioner did not file a Reply.5 3 4 The parties consented, pursuant to 28 U.S.C. § 636(c), to 5 the 6 Judge. 7 the 8 prejudice. jurisdiction of the undersigned (Dkt. Nos. 3, 14, 17). Petition is DENIED and United States Magistrate For the reasons discussed below, this action is DISMISSED with 9 10 PRIOR PROCEEDINGS 11 12 On July 19, 2013, a Los Angeles County Superior Court jury, 13 in case number LA072677, found Petitioner guilty of two counts of 14 assault likely to produce great bodily injury (Counts Two and 15 Three), 16 245(a)(4); one count of simple battery (Count Four), in violation 17 of P.C. § 242;6 and one count of battery with serious bodily 18 injury (Count Five), in violation of P.C. § 243(d). 19 The jury also found true the special allegations that Petitioner 20 inflicted great bodily injury on both victims, in violation of in violation of California Penal Code (“P.C.”) § (CT 114-18). 21 22 23 24 25 26 27 28 4 Respondent has labeled multiple documents as Lodgments 5 and 6. (Dkt. Nos. 44, 66). The Court will refer to Lodgments 5 and 6 in Dkt. No. 66 as 5A and 6A, respectively. 5 On November 7, 2017, the Court gave Petitioner until December 7, 2017, to file a Reply. (Dkt. No. 67). 6 As to Count Four, the jury found Petitioner not guilty of felony battery with serious bodily injury but guilty on the lesser included offense of simple battery, a misdemeanor. (CT 116-17). 4 1 P.C. § 12022.7.7 2 sentenced Petitioner to eleven years in state prison. 3 1). (CT 114-15). On March 6, 2014, the trial court (Lodgment 4 5 Plaintiff appealed his convictions and sentence to the 6 California Court of Appeal (Second Appellate District, Division 7 Five), which affirmed the convictions, but reversed and remanded 8 as to the sentence imposed by the trial court, in an unpublished 9 opinion filed January 15, 2015. (Lodgments 2, 10-12). At 10 resentencing, the trial court sentenced Petitioner to nine years 11 in 12 Petitioner filed a petition for review in the California Supreme 13 Court, which denied the petition without comment on March 25, 14 2015. (Lodgments 3-4). state prison. (Lodgment 5A). On February 18, 2015, 15 16 On April 11, 2016, Petitioner filed a habeas petition in the 17 California Supreme Court (“First Habeas Petition”), which was 18 denied 19 authority. 20 a second habeas petition in the California Supreme Court, which on May 25, 2016, without (Lodgments 6A, 7). discussion or citations to On July 3, 2017 Petitioner filed 21 22 23 24 25 26 27 28 7 The jury also found Petitioner guilty of assault with a deadly weapon (Count One), in violation of P.C. § 245(a)(1). (CT 113). The trial court granted a new trial as to Count One and that charge was subsequently dismissed. (CT 175; Lodgment 2 at 7). 5 1 was denied on September 13, 2017, as successive with a citation 2 to In re Clark, 5 Cal. 4th 750, 767-69 (1993).8 (Lodgments 8-9). 3 4 FACTUAL BACKGROUND 5 6 The following facts, taken from the California Court of 7 Appeal’s decision on direct review, have not been rebutted with 8 clear and convincing evidence and must be presumed correct. 9 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th 10 28 Cir. 2009). 11 12 A. Prosecution’s Case 13 14 1. Tarlan Hendi’s Testimony 15 16 On the morning of November 27, 2012, Tarlan Hendi 17 was at Pierce College in Woodland Hills. She went to 18 the computer lab in the library to type a paper. She 19 found 20 accidentally hit the 21 [Petitioner] was seated. 22 where you're going” or “Watch what you hit.” When Hendi 23 apologized, [Petitioner] responded, “I’m just saying” 24 and then raised his voice and said, “Watch what you 25 hit.” Hendi again apologized and then asked, “So why a seat but, as she back sat of down, the her chair [Petitioner] backpack in said, which “Watch 26 8 27 28 Denial with a citation to In re Clark indicates that the habeas petition was successive or untimely. Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011). 6 1 are you basically continuing this?” Hendi also asked 2 [Petitioner] to lower his voice, and he replied, “I can 3 do what I want . . . bitch.” Hendi became angry and 4 called 5 “grabbed” Hendi’s cup of coffee and “spilled it all 6 over her face.” Hendi stood up, shocked and angry. Her 7 face burned from the hot coffee. [Petitioner]’s mother a bitch. [Petitioner] 8 9 When [Petitioner] stood up, Hendi moved toward 10 him, “cussing him out.” [Petitioner] punched Hendi on 11 the left side of her face, chipping her tooth, and then 12 punched her on the right side of her chin. Hendi heard 13 her classmate say, “Hey you hit a girl,” and saw him 14 move 15 then ensued between [Petitioner] and Hendi’s classmate. 16 Hendi saw [Petitioner] on top of her classmate punching 17 him, 18 punching the 19 followed [Petitioner] 20 leaving. Security 21 [Petitioner]. between causing [Petitioner] him to classmate and bleed. and Hendi. An altercation [Petitioner] stopped the library. tried and left to stop personnel arrived and him Hendi from detained 22 23 After the incident, Hendi could not open her jaw 24 for two weeks and “it was very, very painful.” Hendi 25 made a dentist appointment to have her tooth repaired. 26 27 28 7 1 2. Pouria Mohkami's Testimony 2 3 On the morning of November 27, 2012, Pouria 4 Mohkami and his friend, Hendi, were at Pierce College 5 working on a class project together. They went to the 6 library to use a computer. While they were looking for 7 a place to sit, they passed by [Petitioner] who said, 8 “You touched me.” Hendi apologized, but then she and 9 [Petitioner] began arguing and “cussing each other 10 out.” 11 coffee 12 moved 13 [Petitioner] punch her twice on the side of her face. [Petitioner] in Hendi’s toward became face. upset When and threw a who was Hendi, [Petitioner], Mohkami cup of upset, observed 14 15 Mohkami 16 [Petitioner] 17 times.” Mohkami tried to punch [Petitioner] and then 18 took 19 separated the two men. him to tried to punched the “stop him ground, in at the the whole face which thing,” “a point couple but of bystanders 20 21 After the altercation, Mohkami had a “couple of 22 bruises” 23 punch.” Police officers photographed the cut, and, at 24 trial, Mohkami had a scar on his face from the cut. 25 Mohkami received treatment at the campus nurse’s office 26 and was advised to go to the hospital to have the cut 27 stitched and to be examined for a concussion. and a one-inch cut 28 8 that he “got from the 1 3. Susan Mollasalehi's Testimony 2 3 On 4 Mollasalehi 5 College 6 first row of computers and saw [Petitioner] sitting at 7 the 8 [Petitioner] were unoccupied, but Mollasalehi sat at 9 the third computer. [Petitioner] was “watching a video the morning was in library. first of the When computer. November computer she The 27, lab arrived, chair and 2012, in she the went computer Susan Pierce to the next to 10 or 11 himself.” Sometime after Mollasalehi sat down, a man 12 and a woman arrived and the woman pulled out the chair 13 in front of the second computer next to [Petitioner]. 14 She had a backpack on her left shoulder and, when she 15 tried to put her backpack down, she “hit” [Petitioner] 16 with it. The woman immediately apologized, but that 17 created tension between the woman and [Petitioner], who 18 appeared to 19 himself saying, 20 Mollasalehi 21 times.” She next heard [Petitioner] call the woman a 22 bitch and observed him take the hot coffee that was in 23 front of the woman and “pour[ ] it on her face.” The 24 woman became upset and called [Petitioner]’s mother a 25 bitch, at which point [Petitioner] stood up and turned 26 toward the woman, who also stood up. As the woman and 27 [Petitioner] were facing each other, Mollasalehi saw 28 [Petitioner] punch “her in the face with both hands.” something” and be “was upset. heard “You the just mesmerizing [Petitioner] should woman 9 be was more apologize “a [sic] talking to to careful.” couple of 1 At that point the man who came into the library 2 with the woman intervened. [Petitioner] and the man 3 began fighting and [Petitioner] pulled the man to the 4 floor, 5 [Petitioner] on top of the man “punching him in the 6 face and chest.” knocking down a whiteboard. She then saw 7 8 Bystanders began “yelling” and somebody called 9 security. [Petitioner] took off his shirt and tried to 10 run out, but the female victim ran after him telling 11 him he could not leave. 12 13 B. [Petitioner]’s Case 14 15 [Petitioner], who represented himself at trial, 16 testified on his own behalf as follows. On the day of 17 the incident, [Petitioner] had an appointment with a 18 counselor. He was in the library seated at the “last 19 seat . . . in the computer room.” He had head phones on 20 and therefore could not hear because of the music to 21 which he was listening. He still had his backpack on. 22 The female and male victims came in. When the female 23 took 24 [Petitioner] turned to her and said “ ‘Can you please 25 say “excuse me?” ’ ” [Petitioner] then asked the female 26 to “please scoot [her] chair” because she was “inside 27 [his] space.” [Petitioner] felt as if the female was 28 “trespassing” her backpack and off, invading 10 she his hit space. [Petitioner]. The female 1 replied, “Scoot your fucking chair forward. Then you 2 won’t 3 saying, “Are you going to leave it alone,” because the 4 female “kept on going.” During his verbal exchange with 5 the female, [Petitioner] did say the word “bitch,” but 6 he was “talking to himself.” have that problem.” [Petitioner] responded, 7 8 [Petitioner] threw the cup of coffee because the 9 female was “yelling” at him and had not apologized. But 10 he did not “directly throw the cup of coffee at her. 11 [He] just threw it. It had no force. [He] just threw 12 it.” The coffee “got on her and got on [[Petitioner]].” 13 The female then “hopped up” and attacked [Petitioner]. 14 The 15 punches.” 16 punch 17 [Petitioner] did not hit the female in the front of her 18 mouth. 19 hitting her “on [his] own.” attack was No made He only “hard one [Petitioner] hit the enough to intervened, “get female numb up twice or and and chip [Petitioner] a just throw neither tooth.” stopped 20 21 At that point, the female’s male companion became 22 involved, saying “Oh, so you just going to hit her?” 23 The male then attacked [Petitioner] swinging at him and 24 then grabbing him. [Petitioner] broke free and threw 25 punches at the man because he had thrown punches at 26 [Petitioner]. 27 suffered a scratched lip. Other people then came around 28 and pushed [Petitioner] back into the male causing them During the altercation, 11 [Petitioner] 1 both to fall to the ground. People were pulling at 2 [Petitioner]'s backpack as he wrestled with the male. 3 [Petitioner] was trying to break up the fight and was 4 defending himself because he felt “unsafe from all of 5 them.” [Petitioner] “then . . . left it alone. [He] put 6 on [his] shirt, [his] backpack, and then [he] left.” 7 The female pulled [Petitioner] and tried to prevent him 8 from going downstairs. He grabbed her hands and pushed 9 her off him. As he walked downstairs, the female came 10 back and tried to push him down the stairs. Because 11 [Petitioner] had forgotten his earphones, he went back 12 upstairs 13 downstairs 14 building.” At that point, security personnel arrived to 15 investigate the incident. [Petitioner] was arrested and 16 taken to jail. to retrieve and began them, walking and to then the went back “counselor 17 18 (Lodgment 2 at 2-6). 19 20 PETITIONER’S CLAIM 21 22 23 Petitioner challenges the sufficiency of the evidence to support his convictions on all counts. 24 (Petition at 8).9 25 26 27 28 9 The Court cites to the Petition as if was consecutively numbered in accordance with the Court’s electronic docket. 12 1 STANDARD OF REVIEW 2 3 The Antiterrorism and Effective Death Penalty Act of 1996 4 (“AEDPA”) “bars relitigation of any claim ‘adjudicated on the 5 merits’ 6 §§ 2254(d)(1) and (d)(2).” 7 98 (2011). 8 may grant habeas relief only if the state court adjudication was 9 contrary to or an unreasonable application of clearly established 10 federal law or was based upon an unreasonable determination of 11 the facts. 12 and 13 rulings, which demands that state-court decisions be given the 14 benefit of the doubt[.]’ ” 15 181 (2011) (citations omitted). in state court, subject only to the exceptions in Harrington v. Richter, 562 U.S. 86, Under AEDPA’s deferential standard, a federal court 28 U.S.C. § 2254(d). ‘highly deferential “This is a ‘difficult to meet’ standard for evaluating state-court Cullen v. Pinholster, 563 U.S. 170, 16 17 Petitioner raised his sufficiency of the evidence claim as 18 to 19 California 20 comment or citation to authority. (Lodgments 3-4). 21 “looks through” the California Supreme Court’s silent denials to 22 the last reasoned decision as the basis for the state court’s 23 judgment. 24 (“Where there has been one reasoned state judgment rejecting a 25 federal claim, later unexplained orders upholding that judgment 26 or rejecting the same claim rest upon the same ground.”); Cannedy 27 v. Adams, 706 F.3d 1148, 1159, as amended, 733 F.3d 794 (9th Cir. 28 2013) (“[W]e conclude that Richter does not change our practice Counts Three and Supreme Five Court, in his which petition denied for the review petition to the without The Court See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) 13 1 of 2 decision —- whether those denials are on the merits or denials of 3 discretionary 4 addressing Petitioner’s sufficiency of the evidence claim as to 5 Counts Three and Five, the Court will consider the California 6 Court 7 Berghuis v. Thompkins, 560 U.S. 370, 380 (2010). ‘looking of through’ summary review.”) Appeal’s denials (footnote reasoned to the last omitted). opinion reasoned Therefore, addressing this in claim. 8 9 Petitioner raised his sufficiency of the evidence claim as 10 to Counts Two and Four in his first California Supreme Court 11 habeas 12 citation to authority. 13 has 14 Petitioner’s claim, the Court must conduct an independent review 15 of the record to determine whether the state court’s ultimate 16 decision to deny this claim was contrary to, or an unreasonable 17 application 18 Schriro, 745 F.3d 984, 996–97 (9th Cir. 2014); Walker v. Martel, 19 709 F.3d 925, 939 (9th Cir. 2013). 20 novo review of the constitutional question.” 21 939; Kyzar v. Ryan, 780 F.3d 940, 949 (9th Cir.), cert. denied, 22 136 S. Ct. 108 (2015). 23 reasoned decision analyzing Petitioner’s constitutional claims, 24 the Court “must determine what arguments or theories . . . could 25 have supported[ ] the state court’s decision” and “then it must 26 ask whether it is possible fairminded jurists could disagree that 27 those arguments or theories are inconsistent with the holding in petition, provided a of, which denied the claim (Lodgments 6A, 7). reasoned clearly decision without or Since no state court addressing established comment federal the law. merits Murray of v. “Crucially, this is not a de Walker, 709 F.3d at Rather, where, as here, there is no 28 14 1 a prior decision of this Court.” 2 v. Beard, 849 F.3d 1164, 1169 (9th Cir. 2017). Richter, 562 U.S. at 102; Mahrt 3 4 DISCUSSION 5 6 A. Sufficiency of the Evidence 7 8 To review the sufficiency of the evidence in a habeas corpus 9 proceeding, the Court must determine “whether, after viewing the 10 evidence in the light most favorable to the prosecution, any 11 rational trier of fact could have found the essential elements of 12 the crime beyond a reasonable doubt.” 13 U.S. 307, 319 (1979) (emphasis in original); Parker v. Matthews, 14 567 U.S. 37, 43 (2012) (per curiam); see also Coleman v. Johnson, 15 566 U.S. 650, 656 (2012) (per curiam) (“[T]he only question under 16 Jackson is whether [the jury’s] finding was so insupportable as 17 to 18 reviewing court must consider all of the evidence admitted by the 19 trial court, regardless [of] whether that evidence was admitted 20 erroneously,” 21 curiam) (citation omitted), all evidence must be considered in 22 the light most favorable to the prosecution, Lewis v. Jeffers, 23 497 U.S. 764, 782 (1990); Jackson, 443 U.S. at 319, and if the 24 facts 25 presume - 26 record - that the trier of fact resolved any such conflicts in 27 favor of the prosecution, and must defer to that resolution.” 28 Jackson, 443 U.S. at 326; Cavazos v. Smith, 565 U.S. 1, 7 (2011) fall below support even the threshold of bare Jackson v. Virginia, 443 rationality.”). “[A] McDaniel v. Brown, 558 U.S. 120, 131 (2010) (per conflicting if it inferences, does not 15 reviewing affirmatively courts appear “must in the 1 (per curiam). 2 “apply the standards of [Jackson] with an additional layer of 3 deference.” 4 2005); Boyer v. Belleque, 659 F.3d 957, 964-65 (9th Cir. 2011). 5 These standards are applied to the substantive elements of the 6 criminal offense under state law. 7 Boyer, 659 F.3d at 964; see also Johnson, 566 U.S. at 655 (“Under 8 Jackson, 9 substantive elements of the criminal offense, but the minimum 10 amount of evidence that the Due Process Clause requires to prove 11 the 12 omitted). Furthermore, under the AEDPA, federal courts must Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. federal offense is courts purely must a Jackson, 443 U.S. at 324 n.16; look matter of to state federal law law.”) for the (citation 13 14 B. Relevant California Criminal Law 15 16 An assault is “an unlawful attempt, coupled with a present 17 ability, to commit a violent injury on the person of another.” 18 P.C. § 240. 19 assault “by any means of force likely to produce great bodily 20 injury.” 21 3d 660, 668 (1980) (“An assault by means of force likely to 22 produce great bodily injury, is an assault, as to which the force 23 essential to all assaults is of such a nature or degree that the 24 probable result of its application will be the infliction of 25 great bodily injury.”). 26 significant or substantial physical injury.” 27 see Covino, 100 Cal. App. 3d at 668 (“Great bodily injury is 28 bodily The California Penal Code further prohibits an P.C. § 245(a)(4); see People v. Covino, 100 Cal. App. injury which “Great bodily injury” is defined as “a is significant 16 or P.C. § 12022.7(f); substantial, not 1 insignificant, 2 “significant or substantial physical injury” test “contains no 3 specific 4 ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of 5 bodily function.” trivial requirement or moderate.”). that the Nevertheless, victim suffer the ‘permanent,’ People v. Escobar, 3 Cal. 4th 740, 750 (1992). 6 7 A battery is “any willful and unlawful use of force or 8 violence upon the person of another.” 9 the batterer not only uses unlawful force upon the victim but 10 causes injury of sufficient seriousness, then a felony battery is 11 committed.” 12 as modified on denial of reh’g (May 8, 2012) (citation omitted) 13 (emphasis 14 injury” is required. 15 “ ‘serious bodily injury’ means a serious impairment of physical 16 condition, including, but not limited to, the following: loss of 17 consciousness; 18 impairment of function of any bodily member or organ; a wound 19 requiring extensive suturing; and serious disfigurement.” 20 § 243(f)(4). P.C. § 242. “If, however, People v. Wade, 204 Cal. App. 4th 1142, 1147 (2012), in original). For felony P.C. § 243(d). concussion; bone battery, “serious bodily As used in this section, fracture; protracted loss or P.C. 21 22 “[A] defendant acts in lawful self-defense if ‘one, the 23 defendant reasonably believed that he was in imminent danger of 24 suffering bodily injury . . . or was in imminent danger of being 25 touched unlawfully; two, the defendant reasonably believed that 26 the immediate use of force was necessary to defend against that 27 danger; and three, the defendant used no more force than was 28 reasonably necessary to defend 17 himself against that danger.” 1 People v. Clark, 201 Cal. App. 4th 235, 250 (2011) (citation 2 omitted). 3 in the need to defend,” People v. Humphrey, 13 Cal. 4th 1073, 4 1082 (1996); see People v. Battle, 198 Cal. App. 4th 50, 72 5 (2011), and must have acted in actual fear of imminent danger to 6 life or great bodily injury, People v. Stitely, 7 551 (2005). 8 is reasonable under the circumstances.” 9 Cal. 4th 1055, 1065 (1996). “[T]he defendant must actually and reasonably believe 35 Cal. 4th 514, The defense “is limited to the use of such force as People v. Minifie, 13 “The right of self-defense is only 10 available to a person who initiated an assault if he has done all 11 of the following: One, he has actually tried in good faith to 12 refuse to continue fighting; two, he has clearly informed his 13 opponent that he wants to stop fighting; and, three, he has 14 clearly 15 People 16 omitted). 17 to a person who seeks a quarrel with the intent to create a real 18 or apparent necessity of exercising self-defense.” 19 (citation 20 beyond a reasonable doubt the defendant’s use of force was not in 21 lawful self-defense. 22 (2012). informed v. his Nguyen, 61 opponent Cal. that 4th he has 1015, stopped 1043 fighting.” (2015) (citation However, “[t]he right of self-defense is not available omitted). The prosecutor has the Id. at 1044 burden to prove People v. Tully, 54 Cal. 4th 952, 1028 23 24 25 26 27 28 18 1 C. Assault and Battery Against Hendi 2 3 1. Count 4 Two: Assault Likely To Produce Great Bodily Injury 5 6 Petitioner contends there was insufficient evidence to 7 support the finding in Count Two that he inflicted assault by 8 means likely to inflict great bodily injury on Tarlan Hendi. 9 (Petition at 8-9). 10 11 Hendi testified that on the morning of November 27, 2012, 12 she went to the computer lab in the library at Pierce College to 13 type a school paper. 14 she 15 Petitioner’s chair. 16 into a heated verbal altercation, during which Petitioner picked 17 up Hendi’s cup of hot coffee and threw it in her face. 18 Petitioner then punched Hendi twice in the face, chipping her 19 tooth. 20 taken to the emergency room, was unable to open her jaw for more 21 than two weeks, and required dental work to repair the chipped 22 tooth. sat down, (RT 44-46, 73). her backpack accidentally (RT 52, 73). (RT 47-51). She found a seat but as hit the back of Hendi and Petitioner then got (RT 47). As a result of this altercation, Hendi was (RT 50-51, 67). 23 24 Pouria Mohkami testified that on November 27, 2012, he and 25 Hendi were at Pierce College working together on a class project. 26 (RT 73). 27 accidently touched Petitioner. 28 and threw Petitioner and Hendi got into an argument after Hendi a hot cup of (RT 73). coffee 19 in Petitioner got upset Hendi’s face. (RT 74). 1 Petitioner then punched Hendi twice on the side of her face 2 before Mohkami intervened. (RT 74). 3 4 Susan Mollasalehi testified that on November 27, 2012, she 5 was in the Pierce College computer lab. 6 Petitioner watching a video on his computer. 7 later, she saw Hendi and Mohkami enter the lab. 8 tried to put her backpack on the floor to sit down on the empty 9 chair next to Petitioner, but her backpack accidently hit him. (RT 305). She observed (RT 306). Sometime (RT 306). Hendi 10 (RT 11 telling Hendi she should be more careful. 12 argument became heated, and Petitioner picked up a cup of hot 13 coffee and poured in on Hendi’s face. 14 then punched Hendi in the face before Mohkami came to her aid. 15 (RT 309-10). 306-07). Hendi apologized but Petitioner became upset, (RT 307). Their (RT 307-09). Petitioner 16 17 Petitioner, who represented himself at trial, testified that 18 he threw the cup of coffee at Hendi because she was yelling at 19 him and had not apologized. 20 punches at Hendi, but claimed that he only hit her twice. 21 349). 22 to numb or chip her tooth.” (RT 349). He acknowledged throwing (RT Petitioner claimed that his punches were not “hard enough (RT 349). 23 24 From the evidence, a rational factfinder could find beyond a 25 reasonable doubt that in striking Hendi twice in the face with 26 his fists, Petitioner used force likely to produce great bodily 27 injury and actually inflicted great bodily injury, supporting the 28 jury’s special allegation finding. 20 See People v. Aguilar, 16 1 Cal. 4th 1023, 1028 (1997) (“That the use of hands or fists alone 2 may support a conviction of assault ‘by means of force likely to 3 produce great bodily injury’ is well established.”); People v. 4 Chavez, 268 Cal. App. 2d 381, 384 (1968) (“the cases are legion 5 in holding that an assault by means of force likely to produce 6 great bodily injury may be committed with fists”). 7 of whether or not the force used was such as to have been likely 8 to 9 determination of the jury based on all the evidence, including produce great bodily injury, is one of “The question fact for the 10 but not limited to the injury inflicted.” 11 Cal. 12 omitted); see People v. McDaniel, 159 Cal. App. 4th 736, 748–49 13 (2008) (“Whether a fist used in striking a person would be likely 14 to cause great bodily injury is to be determined by the force of 15 the impact, the manner in which it was used and the circumstances 16 under which the force was applied.”). 17 painful jaw and the dental work required to repair her chipped 18 tooth were sufficient for the jury to find that Petitioner used 19 force likely to produce great bodily injury. 20 Salas, 77 Cal. App. 3d 600, 606 (1978) (evidence that defendant’s 21 blows caused broken nose and a tooth to be knocked out were 22 sufficient to support jury’s finding that defendant assaulted the 23 victim with intent to produce great bodily injury and that victim 24 suffered great bodily injury). 25 is sufficient to support a conviction for assault by means likely 26 to produce great bodily injury. 27 3d 28 sufficient to support assault by means of force likely to produce App. 1157, 4th 1060, 1161–62 1066 (1989) (1992) People v. Armstrong, 8 (citation and alteration Here, evidence of Hendi’s See People v. Indeed, a single blow with a fist In re Nirran W., 207 Cal. App. (concluding 21 evidence was “clearly” 1 great bodily injury where defendant punched the victim in the 2 face with sufficient force to knock her down, victim felt “jaw 3 pop out and then back in,” and victim’s “teeth still did not 4 meet,” two months after the attack); see also Escobar, 3 Cal. 4th 5 at 6 impairment or loss of bodily function). 750 (victim need not suffer permanent or even prolonged 7 8 9 Petitioner contends that he did not hit Hendi hard enough to chip her tooth or bust her lip. (Petition at 8). The jury heard 10 Petitioner’s 11 nevertheless 12 reevaluate the credibility of a witness when the court did not 13 observe the witness’s demeanor. 14 422, 434 (1983). 15 jury - not the court - to decide what conclusions should be drawn 16 from evidence admitted at trial,” Smith, 565 U.S. at 2, and this 17 Court “must respect the province of the jury to determine the 18 credibility of witnesses, resolve evidentiary conflicts, and draw 19 reasonable inferences from proven facts by assuming that the jury 20 resolved 21 verdict,” Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997) 22 (citation omitted); see also Schlup v. Delo, 513 U.S. 298, 330 23 (1995) (“[U]nder Jackson, the assessment of the credibility of 24 witnesses is generally beyond the scope of review.”). testimony convicted all in this him. A regard federal (RT habeas 349–50), court but cannot Marshall v. Lonberger, 459 U.S. Instead, “it is the responsibility of the conflicts in a manner that supports the 25 26 Petitioner also contends that he acted in self-defense. 27 (Petition at 8-9). 28 Hendi only after she “trespassed [his] space” and attacked him While Petitioner testified that he punched 22 1 (RT 2 evidence 3 Petitioner’s 4 evidence: (1) Hendi, Mohkami, and Mollasalehi all testified that 5 Petitioner 6 accidentally touched Petitioner (RT 47-52, 73-74, 306-10); and 7 (2) while Hendi got into a verbal altercation with Petitioner, 8 she never physically threatened him (RT 47, 73, 307-09). 9 these circumstances, the jury could have rationally concluded 10 that Petitioner did not reasonably believe he was in imminent 11 danger from Hendi, or reasonably believe that immediate use of 12 force was necessary to defend himself, and that Petitioner did 13 not use no more force than was reasonably necessary to defend 14 against any perceived danger. 15 acted 16 believed 17 injury or was in imminent danger of being touched unlawfully; 2. 18 The defendant reasonably believed that the immediate use of force 19 was necessary to defend against that danger; AND 3. The defendant 20 used 21 against that danger.”) (as instructed, see CT 108). 22 the jury’s finding that Petitioner’s assault of Hendi was not the 23 result 24 People v. Clark, 130 Cal. App. 3d 371, 378 (1982), abrogated on 25 26 27 28 349-50, demonstrating in no 355-58), the lawful that more of the self-defense threw he prosecution coffee force in than self-defense was punched if: imminent was was Hendi self-defense.10 of refuted substantial by after the following her backpack Under See CALCRIM 3470 (“The defendant self-defense was absence claim and presented 1. The danger reasonably supported 10 by defendant of reasonably suffering necessary sufficient to bodily defend Therefore, evidence. To address Petitioner’s self-defense theory, the trial court instructed the jury with CALCRIM 3470 (Right to SelfDefense or Defense of Another), CALCRIM 3471 (Right to SelfDefense: Mutual Combat or Initial Aggressor), and CALCRIM 3471 (Right to Self-Defense: May Not Be Contrived). (CT 108-09). 23 1 other grounds by People v. Blakeley, 23 Cal. 4th 82 (2000). 2 (“Issues 3 circumstances would cause a reasonable person to perceive the 4 necessity of defense, whether the defendant actually acted out of 5 defense of himself, and whether the force used was excessive, are 6 normally questions of fact for the trier of fact to resolve.”). arising out of self-defense, including whether the 7 8 2. Count Four: Misdemeanor Battery 9 10 Evidence of Petitioner’s assault against Hendi also 11 supported the jury’s finding as to Count Four that Petitioner 12 used 13 punched 14 constitutes 15 Tully, 54 Cal. 4th at 1028; see generally People v. Delgado, 2 16 Cal. 5th 544, 583 (2017) (throwing punches amounts to misdemeanor 17 battery). 18 a rational juror to find that Petitioner’s battery of Hendi was 19 not the result of self-defense. “unlawful . . . Hendi twice force in sufficient or the violence,” face. evidence to P.C. Indeed, prove § 242, throwing misdemeanor when he punches battery. As discussed above, there was sufficient evidence for 20 Based 21 on the Court’s independent review of the evidence 22 presented at trial, considered in the light most favorable to 23 the resolving 24 prosecution, the Court finds that a rational trier of fact could 25 have found, beyond a reasonable doubt, that Petitioner used force 26 prosecution and all conflicts in favor of the likely to inflict great bodily injury on Hendi and that his 27 punches to Hendi’s face constituted an unlawful use of force and 28 24 1 violence on Hendi. 2 summary denial of Petitioner’s sufficiency of the evidence claim 3 Accordingly, the California Supreme Court’s as to counts two and four was neither contrary to, nor involved 4 an unreasonable application of, clearly established federal law. 5 6 7 D. Assault and Battery Against Mohkami 8 9 Petitioner contends that there was insufficient evidence to 10 support the jury’s findings in Counts Three and Five that he 11 inflicted 12 Mohkami. great bodily injury and serious bodily injury on (Petition at 5, 8-9). 13 14 1. California Court of Appeal’s Opinion The California 15 16 to the Court of sufficiency Appeal of the rejected 17 challenge evidence 18 Petitioner’s supporting convictions in Counts Three and five, stating: 19 1. 20 Standard of Review 21 Defendant’s challenge to the sufficiency of the 22 23 evidence 24 serious bodily injury is reviewed under a substantial 25 evidence standard. “ ‘In reviewing a challenge to the 26 sufficiency of the evidence, we do not determine the 27 facts ourselves. Rather, we “examine the whole record 28 in the in support light most of the findings favorable 25 to the of great judgment and to his 1 determine whether it discloses substantial evidence — 2 evidence 3 value — such that a reasonable trier of fact could find 4 the 5 [Citations.] We presume in support of the judgment the 6 existence 7 deduce from the evidence. [Citation.] [¶] . . . “[I]f 8 the 9 findings, that is defendant of reasonable, guilty every circumstances the credible beyond fact the a judgment may could justify not of reasonable trier reasonably and be solid doubt.” reasonably the jury's reversed simply 10 because 11 reconciled with a contrary finding.” [Citation.] We do 12 not 13 credibility. [Citation.]’ ([People v.] Guerra [(2006)] 14 37 15 [(2008)] 45 Cal.4th [1,] 27.)” (People v. Scott (2011) 16 52 Cal.4th 452, 487.) the circumstances reweigh Cal.4th evidence [1067,] might or also reasonably reevaluate 1129; see People a v. be witness’s Lindberg 17 18 2. Analysis 19 20 Defendant contends that there was insufficient 21 evidence 22 inflicted great bodily injury on Mohkami within the 23 meaning of section 12022.7, subdivision (a) — count 3 — 24 and serious bodily injury on Mohkami within the meaning 25 of section 243, subdivision (d) — count 5. According to 26 defendant, the cut and bruises Mohkami sustained during 27 the altercation with defendant were not sufficient to 28 meet the definition of great bodily injury in section to support the 26 findings that defendant 1 12022.7 or the definition of serious bodily injury in 2 section 243. 3 4 Section 12022.7, subdivision (f) defines great 5 bodily injury as “a significant or substantial physical 6 injury.” In People v. Escobar (1992) 3 Cal.4th 740, the 7 Supreme 8 substantial injury 9 requirement that Court explained that test the the significant “contains victim no suffer or specific ‘permanent,’ 10 ‘prolonged,’ or ‘protracted’ disfigurement, impairment, 11 or loss of bodily function.” (Id. at p. 750.) The court 12 in Escobar concluded that the evidence in that case — 13 extensive bruises and abrasions to the victim’s knees 14 and elbows, injury to her neck, and severe soreness in 15 her 16 jury’s 17 According to the court, “[i]t is well-settled that the 18 determination of great bodily injury is essentially a 19 question of fact, not of law. ‘ “ Whether the harm 20 resulting to the victim . . . constitutes great bodily 21 injury is a question of fact for the jury. [Citation.] 22 If there is sufficient evidence to sustain the jury's 23 finding of great bodily injury, we are bound to accept 24 it, even though the circumstances might reasonably be 25 reconciled with a contrary finding.” ’ ” (Ibid.) vaginal area — finding of were sufficient great bodily to support injury. the (Ibid.) 26 27 28 Section 243, subdivision (f)(4) defines serious bodily injury as follows: “ ‘Serious bodily injury’ 27 1 means 2 including, but not limited to, the following: loss of 3 consciousness; 4 loss or impairment of function of any bodily member or 5 organ; 6 serious disfigurement.” a serious a impairment concussion; wound of bone requiring physical condition, fracture; extensive protracted suturing; and 7 8 When the evidence of Mohkami’s injuries is viewed 9 in a light most favorable to the jury’s finding of 10 great 11 charged in count 3 and its finding of serious bodily 12 injury in connection with the battery charged in count 13 5, it was sufficient to support those findings. Mohkami 14 testified 15 defendant, his face was bruised and he had a cut on his 16 cheek that the school nurse said required stitches. The 17 photographic exhibit depicting that cut shows what the 18 prosecutor fairly described as a “gash” and the trial 19 court described as one-inch long. By the time of trial, 20 the cut or gash — which defendant [sic] refused to have 21 sutured 22 healed, leaving a visible scar that the jury was able 23 to observe and evaluate. In addition, the school nurse 24 advised Mohkami to go to the emergency room so that he 25 could be evaluated for a concussion. bodily injury that as as a in connection result recommended by of the the with the assault altercation school nurse — with had 26 27 28 Given that evidence, which we cannot reweigh or reevaluate on appeal, we 28 conclude that it was 1 sufficient to support the jury’s findings of great and 2 serious bodily injury. Whether Mohkami suffered great 3 or serious bodily injury as those terms are defined by 4 the respective statutes were fact questions within the 5 exclusive province of the jury to resolve based on the 6 evidence 7 described above, could reasonably be construed to meet 8 the 9 Escobar, supra, 3 Cal.4th at p. 750, fn. 3 [“ ‘The term of Mohkami’s statutory injuries, definitions. evidence (See, which, e.g., People as v. 10 “great 11 California 12 definition and the courts have consistently held that 13 it 14 elaboration. [Citations.]’ ”].) is bodily not injury” for a has over a technical been used century term that in the without requires law of further further 15 16 (Lodgment 2 at 7-9). 17 18 2. Analysis 19 20 Petitioner contends there was insufficient evidence to 21 support the jury’s finding that he inflicted great bodily injury 22 on Mohkami. 23 Appeal found that the following evidence introduced at trial, 24 which demonstrated that Petitioner swung at Mohkami and punched 25 him in the face and chest 26 sufficient to support the jury’s findings of great bodily injury 27 and serious bodily injury. (Petition at 5, 8-9). The California Court of (RT 63-64, 73-75, 86, 309-11), was 28 29 1 Mohkami testified that after Petitioner punched Hendi, 2 Mohkami tried to stop the altercation but Petitioner punched him 3 in the face a couple times. 4 tried to punch Petitioner and then took him to the ground, at 5 which point other bystanders separated Petitioner and Mohkami. 6 (RT 78–79). 7 bruises, and his face was “tore up a bit like around half an 8 inch.” 9 depicted Mohkami’s face with an open gash. (RT 74–75). In response, Mohkami As a result of this altercation, Mohkami sustained (RT 75-76). A photograph introduced into evidence (RT 75-76). Mohkami 10 testified 11 eventually scarred. 12 nurse’s office, he was told that he might have a concussion and 13 advised to go to the hospital to have his cut stitched. 14 85). that he was bleeding from (RT 64, 76). the open gash, which When Mohkami went to the (RT 84- 15 16 Hendi testified that after Petitioner hit her the second 17 time, Mohkami intervened to prevent Petitioner from continuing to 18 hit her. 19 Mohkami, punching him and causing him to bleed. 20 Mollasalehi 21 Mohkami and Petitioner fighting. 22 Mohkami to the floor, punching him in the face and chest. 23 310-11). 24 security, 25 Petitioner acknowledged that after Mohkami grabbed him, he threw 26 some punches. (RT 49, 64). testified Other and that Hendi observed Petitioner on top of after bystanders Petitioner Mohkami tried (RT 351). 27 28 30 intervened, (RT 310). began to she saw Petitioner pulled yelling, run (RT 63-64). someone away. (RT (RT called 311). 1 As the California Court of Appeal found, this evidence was 2 sufficient 3 reasonable doubt, that in striking Mohkami in the face and chest, 4 Petitioner used force likely to produce great bodily injury and 5 actually 6 Petitioner’s use of his fists to punch Mohkami was sufficient to 7 support a conviction of assault with force likely to cause great 8 bodily injury. 9 hands or fists alone may support a conviction of assault ‘by 10 means of force likely to produce great bodily injury’ is well 11 established.”); Chavez, 268 Cal. App. 2d at 384 (“the cases are 12 legion in holding that an assault by means of force likely to 13 produce 14 Evidence that Mohkami suffered an open gash to his face, which 15 was noticeably bleeding, was also sufficient for the jury to find 16 that Petitioner actually inflicted “great bodily injury.” 17 People 18 (“lacerations, bruises, or abrasions is sufficient for a finding 19 of ‘great bodily injury’ ”); People v. Nitschmann, 35 Cal. App. 20 4th 677, 680, 683 (1995), as modified (June 6, 1995) (evidence 21 that the victim was punched in the face and had his head rammed 22 into a car door, causing a large gash and profuse bleeding, “was 23 sufficient to support a ‘great bodily injury’ finding”). for a inflicted great v. rational great factfinder bodily to injury. conclude, As beyond discussed a above, Aguilar, 16 Cal. 4th at 1028 (“That the use of bodily Washington, injury 210 may Cal. be App. committed 4th with 1042, fists”). 1047 See (2012) 24 25 Petitioner contends that Mohkami’s bruises, cut and scar do 26 not constitute great bodily injury. 27 as the California Court of Appeal noted, P.C. § 12022.7 “contains 28 no specific requirement that the 31 (Lodgment 3 at 9). victim suffer However, ‘permanent,’ 1 ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of 2 bodily function.” 3 determination of “great bodily injury” is a question of fact for 4 the jury. 5 great bodily injury is essentially a question of fact, not of 6 law.”). 7 presented at trial. 8 2000) (“It is not enough that we might have reached a different 9 result Escobar, 3 Cal. 4th at 750. Indeed, the Id. (“It is well settled that the determination of It is not ourselves for this Court to reweigh the evidence Jones v. Wood, 207 F.3d 557, 563 (9th Cir. or that, as judges, we may have reasonable 10 doubt.”); People v. Wolcott, 34 Cal. 3d 92, 107 (1983) (“If there 11 is sufficient evidence to sustain the jury’s finding of great 12 bodily 13 circumstances 14 finding.”) (citation omitted). injury, we are might bound to reasonably accept even though reconciled be it, with a the contrary 15 16 Petitioner 17 (Petition at 8-9). While Petitioner testified that he threw 18 punches only 19 Petitioner 20 evidence demonstrating the absence of self-defense. 21 self-defense claim was refuted by the following evidence: (1) 22 Mohkami 23 continuing to punch Hendi (RT 49, 64, 74-75, 310); (2) Mohkami 24 and Hendi both testified that Petitioner punched Mohkami before 25 Mohkami threw any punches (RT 63-64, 74-75); (3) Petitioner did 26 not stop fighting with Mohkami until bystanders pulled them apart 27 (RT 28 including bruises, bleeding, and a gash across his face (RT 47, at also Mohkami (RT 351), entered 78-79, contends 311); the (4) the that after he acted Mohkami prosecution altercation Mohkami to 32 grabbed presented prevent sustained in self-defense. and punched substantial Petitioner’s Petitioner significant from injuries, 1 73, 307-09); and (5) Petitioner sustained no more than a slight 2 injury to his face (RT 362). 3 could 4 reasonably believe he was in imminent danger from Mohkami, (2) 5 reasonably believe that immediate use of force was necessary to 6 defend himself, and (3) use no more force than was reasonably 7 necessary. 8 reasonably concluded that Petitioner did not actually and in good 9 faith try to stop fighting with Mohkami. have rationally See Under these circumstances, the jury concluded CALCRIM that 3470. Petitioner The jury did could not also (1) have See Phillips v. Cano, 10 No. EDCV 16-576O, 2017 WL 2629040, at *10 (C.D. Cal. May 5, 11 2017), report and recommendation adopted, No. EDCV 16-576O, 2017 12 WL 2622729 (C.D. Cal. June 15, 2017), appeal dismissed sub nom. 13 Phillips v. Montgomery, No. 17-55872, 2017 WL 4216903 (9th Cir. 14 Aug. 15, 2017) (“Petitioner has pointed to no evidence in the 15 record 16 fighting . . . 17 aggressor 18 CALCRIM 3471 (“A person who engages in mutual combat or who 19 starts 20 actually and in good faith tried to stop fighting; AND 2. He 21 indicated, by word or by conduct, to his opponent, in a way that 22 a reasonable person would understand, that he wanted to stop 23 fighting and that he had stopped fighting.”) (as instructed, see 24 CT 109). suggesting a can fight as he CALCRIM regain has made the a a 3471 right right to good faith requires to attempt before an self-defense.”); self-defense to only stop initial see if: also 1. He 25 26 Finally, the jury could have reasonably concluded that by 27 initiating 28 circumstances justifying Mohkami in coming to Hendi’s defense. the assault on Hendi, 33 Petitioner created the 1 See In re Christian S., 7 Cal. 4th 768, 773 (1994) (“It is well 2 established that the ordinary self-defense doctrine — applicable 3 when 4 endangered — may not be invoked by a defendant who, through his 5 own wrongful conduct (e.g., the initiation of a physical assault 6 or the commission of a felony), has created circumstances under 7 which his adversary’s attack or pursuit is legally justified.”); 8 see also CALCRIM 3472 (“A person does not have the right to self- 9 defense if he or she provokes a fight or quarrel with the intent 10 to create an excuse to use force.”) (as instructed, see CT 109). 11 Therefore, the evidence was sufficient for a rational jury to 12 find that Petitioner’s assault of Mohkami was not the result of 13 self-defense. a defendant reasonably believes that his safety is Clark, 130 Cal. App. 3d at 378. 14 15 The California Court of Appeal found that evidence of 16 Petitioner’s assault likely to produce great bodily injury on 17 Mohkami also supported the jury’s finding as to Count Five that 18 Petitioner 19 Mohkami. “When the evidence of Mohkami’s injuries is viewed in a 20 light most favorable to the jury’s finding of great bodily injury 21 in connection with the assault charged in count 3 and its finding 22 of serious bodily injury in connection with the battery charged 23 in 24 Lodgment 2 at 9. 25 436, 440 (2008) (punches to the mouth and side of the head, 26 causing bleeding and bruising, supported “conviction for battery 27 with serious bodily injury”). count committed 5, it was battery with sufficient to serious support bodily those injury on findings.” See People v. Belton, 168 Cal. App. 4th 432, As discussed above, there was 28 34 1 sufficient evidence for a rational jury to find that Petitioner’s 2 battery of Mohkami was not the result of self-defense. 3 4 Accordingly, the California Supreme Court’s rejection of 5 Petitioner’s sufficiency of the evidence claim as to Counts Three 6 and Five was not contrary to, or an unreasonable application of, 7 clearly established federal law. 8 9 ORDER 10 11 For the reasons stated above, IT IS ORDERED that the 12 Petition for Writ of Habeas Corpus is DENIED and this action is 13 dismissed with prejudice. 14 15 DATED: February 22, 2018 16 /S/ __________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 35
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