Oscar E. Vargas v. J. Gastelo, No. 2:2017cv09143 - Document 26 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER DENYING PETITION, DISMISSING ACTION WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY by Magistrate Judge Patrick J. Walsh. The Petition is denied and the action is dismissed with prejudice. (See document for further details.) (sbou)
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Oscar E. Vargas v. J. Gastelo Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 OSCAR E. VARGAS, 11 Petitioner, 12 13 v. J. GASTELO, WARDEN, 14 Respondent. CASE NO. CV 17-9143-PJW ) ) ) ) ) ) ) ) ) ) MEMORANDUM OPINION AND ORDER DENYING PETITION, DISMISSING ACTION WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY 15 16 I. 17 INTRODUCTION 18 Before the Court is a Petition for Writ of Habeas Corpus under 28 19 U.S.C. § 2254. 20 overturned because the prosecution failed to prove his guilt beyond a 21 reasonable doubt, his trial counsel was ineffective, the statute he 22 was convicted under is unconstitutional, and the jury was prejudiced 23 against him because he interrupted voir dire to complain about his 24 lawyer. 25 the action is dismissed with prejudice. Petitioner claims that his conviction should be For the reasons set forth below, the Petition is denied and 26 27 28 Dockets.Justia.com 1 II. 2 SUMMARY OF PROCEEDINGS 3 4 A. State Court Proceedings In 2015, a jury in Los Angeles County Superior Court found 5 Petitioner guilty of carrying a concealed dirk or dagger. 6 Transcript (“CT”) 78.) 7 strike under California’s Three Strikes law and had served two prior 8 prison terms and sentenced him to five years in prison. 9 99, 111, 114-15.) 10 (Clerk’s The trial court determined that he had a prior (CT 21-22, Petitioner appealed to the California Court of Appeal, which 11 affirmed the judgment. 12 petition for review in the California Supreme Court, which was 13 summarily denied. 14 (Lodged Doc. Nos. 1-4.) He then filed a (Lodged Doc. Nos. 5-6.) While his appeal was pending, Petitioner filed habeas corpus 15 petitions in the Los Angeles County Superior Court and the California 16 Court of Appeal, both of which were denied, in part because his appeal 17 was still pending. 18 Corpus, Exh. A.) 19 California Supreme Court, which was summarily denied. 20 Nos. 9-10.) (Lodged Doc. Nos. 7-8; Petition for Writ of Habeas He also filed a habeas corpus petition in the (Lodged Doc. 21 III. 22 FACTUAL SUMMARY 23 The following statement of facts was taken verbatim from the 24 California Court of Appeal’s opinion affirming Petitioner’s 25 conviction: 26 Around 1:30 p.m. on July 20, 2015, [Petitioner] entered 27 a 7–Eleven store in Reseda. 28 dog and went to the condiments island. [Petitioner] purchased a hot 2 A woman in a 1 wheelchair and her son also entered the store, purchased a 2 hot dog, and went to the condiments island. 3 the woman asked [Petitioner] to move so she could access the 4 condiments. 5 At some point, [Petitioner] became angry and aggressive, rushed toward 6 the woman, and called her a “cripple.” 7 called 911. 8 [Petitioner] outside. 9 search of [Petitioner] and found a serrated kitchen knife The store owner The police arrived, and an officer escorted The officer conducted a pat down 10 inside [Petitioner’s] waistband. 11 [Petitioner’s] shirt and fully concealed from the officer’s 12 vision. 13 The knife was underneath (Lodged Doc. No. 4 at 2-3.) 14 III. 15 STANDARD OF REVIEW 16 The standard of review in this case is set forth in 28 U.S.C. 17 § 2254: 18 An application for a writ of habeas corpus on behalf of a 19 person in custody pursuant to the judgment of a State court 20 shall not be granted with respect to any claim that was 21 adjudicated on the merits in State court proceedings unless 22 the adjudication of the claim-- 23 (1) resulted in a decision that was contrary to, or 24 involved an unreasonable application of, clearly established 25 Federal law, as determined by the Supreme Court of the 26 United States; or 27 28 3 1 (2) resulted in a decision that was based on an 2 unreasonable determination of the facts in light of the 3 evidence presented in the State court proceeding. 4 28 U.S.C. § 2254(d). 5 A state court decision is “contrary to” clearly established 6 federal law if it applies a rule that contradicts Supreme Court case 7 law or if it reaches a conclusion different from the Supreme Court’s 8 in a case that involves facts that are materially indistinguishable. 9 Bell v. Cone, 535 U.S. 685, 694 (2002). To establish that the state 10 court unreasonably applied federal law, a petitioner must show that 11 the state court’s application of Supreme Court precedent to the facts 12 of his case was not only incorrect but objectively unreasonable. 13 Renico v. Lett, 559 U.S. 766, 773 (2010). 14 Petitioner raised Grounds One, Two, and Four in his state habeas 15 petitions, but the state courts denied those claims without explaining 16 why. 17 determine whether there was any reasonable basis to deny relief. 18 Harrington v. Richter, 562 U.S. 86, 98 (2011); see also Hein v. 19 Sullivan, 601 F.3d 897, 905 (9th Cir. 2010). 20 In this situation, the Court will review the entire record to The state appellate court addressed the merits of Petitioner’s 21 claim in Ground Three, which this Court presumes is the basis for the 22 state supreme court’s subsequent denial of the same claim. 23 v. Sellers, 584 U.S. ___, 138 S. Ct. 1188, 1193 (2018). 24 situation, the Court looks to the appellate court’s reasoning and will 25 not disturb it unless it concludes that “fairminded jurists” would all 26 agree that the decision was wrong. See Wilson In this Richter, 562 U.S. at 102. 27 28 4 1 IV. 2 DISCUSSION 3 A. 4 Insufficient Evidence Petitioner claims that there was insufficient evidence to prove 5 beyond a reasonable doubt that he was guilty of carrying a dirk or 6 dagger. 7 There is no merit to this claim. As the United States Supreme Court made clear in Jackson v. 8 Virginia, 443 U.S. 307, 324 (1979), federal habeas corpus relief is 9 not available based on a claim of insufficient evidence unless a 10 petitioner can show that, considering the trial record in a light most 11 favorable to the prosecution, “no rational trier of fact could have 12 found proof of guilt beyond a reasonable doubt.” 13 state law to determine what evidence is necessary to convict. 14 324. 15 not affirmatively appear in the record, that the jury resolved any 16 conflicting inferences in favor of the prosecution. 17 505 U.S. 277, 296–97 (1992). 18 court’s denial of the claim “with an additional layer of deference,” 19 granting relief only where the decision is contrary to or an 20 unreasonable application of Jackson. 21 1274–75 (9th Cir. 2005). 22 The Court looks to Id. at In evaluating such claims, the Court presumes, even if it does Wright v. West, Further, the Court reviews the state Juan H. v. Allen, 408 F.3d 1262, Petitioner was arrested with a 10-inch, serrated, kitchen knife 23 tucked into his waistband and hidden underneath his shirt. 24 convicted of carrying a dirk or dagger under California Penal Code 25 § 21310. 26 or dagger that they know can be readily used to stab someone. 27 Jury Instruction No. 2501. He was This statute prohibits people from carrying a concealed dirk 28 5 CALCRIM 1 Petitioner claims that there was insufficient evidence to prove 2 beyond a reasonable doubt that he knew that the knife was capable of 3 “readily being used as a stabbing weapon.” 4 points out that he never admitted to carrying the knife and claims 5 that he did not think of it as a weapon. 6 State Supreme Court Habeas Petition.1) 7 evidence on the knowledge prong, the prosecutor merely argued that, 8 “Everyone knows that a knife can be used for stabbing.” 9 No. 9 at 3, State Supreme Court Habeas Corpus Petition.) 10 (Petition at 5.) He (Lodged Doc. No. 9 at 3, He contends that, in lieu of (Lodged Doc. The arresting officer testified that he found the knife tucked 11 into Petitioner’s waistband and hidden by his shirt. 12 Transcript (“RT”) 322-24.) 13 establish beyond any doubt that Petitioner knew that he was carrying a 14 knife. 15 irrelevant. 16 (Reporter’s Clearly, that is enough evidence to The fact that Petitioner never admitted to doing so is As for proof that Petitioner knew that the knife could be used to 17 stab someone, the knife was described by the officer for the jury and 18 the jury was shown a photograph of the knife. 19 Exh. E.) 20 could be used to stab someone. 21 Cal. App.3d 720, 727 (1980) (“Just as an ordinary knife has the 22 characteristics of a stabbing and cutting weapon, so has the hunting 23 knife in this case. 24 inflicting a fatal wound.” (internal citation omitted)); People v. (RT 322-23; Petition, This was enough for the jury to conclude that the knife See, e.g., People v. Villagren, 106 It is substantially made, and capable of 25 26 27 28 1 Because Petitioner has not elaborated on the factual basis nor set out any legal support for his claims in the form Petition he filed in this court, the Court has assumed that he is incorporating the same arguments he raised in his habeas petition in the California Supreme Court, which he has attached to his federal Petition. 6 1 Ferguson, 7 Cal. App.3d 13, 19 (1970) (finding that a “butcher knife” 2 has the characteristics of a “stabbing and cutting weapon”). 3 was further empowered to infer, based on all of the circumstances of 4 this case, including Petitioner’s age and experience, that he knew 5 that the serrated kitchen knife he carried in his waistband, 6 underneath his shirt, could be used to stab someone. 7 state court’s finding that there was sufficient evidence to support 8 the conviction will not be disturbed. 9 B. 10 The jury As such, the Ineffective Assistance of Counsel In Ground Two, Petitioner claims that trial counsel was 11 ineffective for failing to “present an amalgam of favorable evidence” 12 at trial. 13 (Petition at 5.) There is no merit to this claim. The Sixth Amendment right to counsel guarantees not only 14 assistance, but effective assistance, of counsel. 15 Washington, 466 U.S. 668 (1984). 16 ineffective assistance of counsel, Petitioner must establish that 17 counsel’s performance fell below an “objective standard of 18 reasonableness” and that the deficient performance prejudiced the 19 defense, i.e., “there is a reasonable probability that, but for 20 counsel’s unprofessional errors, the result of the proceeding would 21 have been different.” See Strickland v. In order to prevail on a claim of Id. at 687–88, 694. 22 Petitioner contends that trial counsel erred by failing to show 23 the jury the videotape of the interaction between Petitioner and the 24 woman in the wheelchair inside the 7-Eleven. 25 3.) 26 knife or even mentioned it during this confrontation. 27 28 (Lodged Doc. No. 9 at He claims that the videotape shows that he never brandished the This evidence is irrelevant. Petitioner was not charged with brandishing the knife and no one claimed that he did so or threatened 7 1 to use it in the store. 2 relevant to any of the elements of the charged offense. 3 counsel’s failure to introduce the videotape could not have prejudiced 4 the outcome of the case. 5 5936566, at *10 (D. Ariz. Nov. 27, 2012) (holding counsel was not 6 ineffective for failing to introduce arguably irrelevant evidence). 7 Nor would his conduct in the store be Thus, See, e.g., Martinez v. Schriro, 2012 WL Petitioner claims that trial counsel was ineffective for failing 8 to object to the prosecutor’s comment in his opening statement that he 9 did not “think anyone in this room is going to get up and say that 10 this knife couldn’t be used as a stabbing weapon.” 11 Petitioner has not demonstrated, however, that this comment was 12 improper. 13 believe that the objection would have been sustained. 14 cannot be ineffective for failing to raise a meritless objection. 15 Juan H., 408 F.3d at 1273. 16 how this statement prior to the introduction of any evidence 17 prejudiced the outcome of the trial. 18 (RT 352.) Thus, even had counsel objected, there is no reason to Trial counsel Moreover, Petitioner has not demonstrated Petitioner argues that counsel “was not persuasive enough” and 19 did not perform up to “expected standards.” 20 This claim is far too vague and conclusory to warrant relief. 21 Villafuerte v. Stewart, 111 F.3d 616, 631 (9th Cir. 1997) (denying 22 claims of ineffective assistance that are vague and conclusory). 23 (Lodged Doc. No. 9 at 3.) See Petitioner claims that counsel should have objected when the 24 trial court ordered a defense witness back to court on a date after 25 the trial had ended. 26 cite any part of the record, however, showing that any witness was 27 ordered back by the trial court, let alone that the trial court did so 28 improperly. (Lodged Doc. No. 9 at 3.) Petitioner fails to Thus, he has not met his burden of proof as to this 8 1 claim. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); see 2 also James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory 3 allegations which are not supported by a statement of specific facts 4 do not warrant habeas relief.”). 5 Finally, Petitioner blames counsel for failing to present 6 “mitigating” evidence, including a copy of his parole conditions, a 7 transcript of the 911 call to police, photographs of a “real” dagger, 8 evidence of other knives he had in his backpack, a declaration that he 9 was working that day, a private investigator’s report that there were 10 no plastic knives at the 7-Eleven, and a doctor’s recommendation that 11 he should be sent to a drug program and not to prison. 12 No. 9 at 3.) 13 this “mitigating” evidence would have changed the outcome of this 14 case. 15 straightforward and essentially uncontradicted. 16 that Petitioner knew that he was carrying the knife and it was 17 reasonable for the jury to infer that Petitioner knew that the knife 18 could be readily used to stab someone. 19 Petitioner faults counsel for failing to present would have undermined 20 the overwhelming evidence proving that Petitioner was guilty. 21 any error by counsel was harmless and, therefore, this claim is 22 denied. 23 assistance claim fails if no reasonable probability outcome of 24 proceeding would have been different but for counsel’s alleged 25 deficient performance). 26 C. 27 28 (Lodged Doc. What Petitioner fails to do, however, is show how any of The evidence that Petitioner was carrying a concealed knife was Further, it was clear None of the evidence that Thus, See Strickland, 466 U.S. at 693-94 (holding ineffective Constitutionality of Criminal Statute In Ground Three, Petitioner contends that the California statute prohibiting the carrying of a dirk or dagger is overbroad. 9 (Petition 1 at 6.) He argues that, as written, the statute criminalizes innocent 2 conduct by people who do not harbor criminal intent. 3 C.) (Petition, Exh. There is no merit to this claim. 4 The California Court of Appeal denied this claim based on People 5 v. Rubalcava, 23 Cal.4th 322 (2000), in which the state Supreme Court 6 rejected the argument that the statute was unconstitutionally 7 overbroad because it did not require proof of specific intent. 8 (Lodged Doc. No. 4 at 5.) 9 Rubalcava “rejected the defendant’s assertion that the omission of a In doing so, the appellate court noted that 10 specific intent requirement in the dirk and dagger statute would 11 result in a substantial infringement of rights guaranteed by the First 12 and Fourth Amendments.” 13 Rubalcava controlled, the appellate court declined “[Petitioner’s] 14 invitation to uproot firmly established Supreme Court precedent by 15 finding” the dirk or dagger statute to be “unconstitutionally 16 overbroad.” 17 (Lodged Doc. No. 4 at 7.) Finding that (Lodged Doc. No. 4 at 9.) The fact that it is possible to conceive of a constitutionally 18 impermissible application of a statute is insufficient to invalidate 19 the statute on its face. 20 (1987). 21 overbreadth, a petitioner must demonstrate that the statute inhibits a 22 substantial amount of constitutionally protected speech or conduct. 23 New York v. Ferber, 458 U.S. 747, 768-69 (1982). 24 not have a substantial impact on speech or expressive conduct 25 protected by the First Amendment will not support a facial challenge 26 under the overbreadth doctrine. 27 41, 52-53 (1999). City of Houston v. Hill, 482 U.S. 451, 458 Rather, to succeed in a constitutional challenge based on A statute that does City of Chicago v. Morales, 527 U.S. 28 10 1 Here, Petitioner does not explain how the prohibition of carrying 2 a concealed dirk or dagger infringes on any of his free speech rights, 3 let alone how it inhibits a substantial amount of protected speech. 4 Instead, he argues that the statute interferes with his right of 5 travel and privacy. 6 limited First Amendment context, a criminal statute may not be 7 attacked as overbroad.” 8 (1984); see also McLeod v. Yates, 2009 WL 5286608, at *15 (C.D. Cal. 9 Nov. 5, 2009) (“No ‘overbreadth’ challenge will lie where, as here, (See Petition, Exh. C.) However, “outside the Schall v. Martin, 467 U.S. 253, 268 n.18 10 [p]etitioner does not challenge the . . . statute on First Amendment 11 grounds.”). 12 Thus, on its face, Petitioner’s claim must be denied. Further, even were the Court to consider the merits of this 13 claim, it would fail because Petitioner has not demonstrated that the 14 state courts’ findings that the statute was not overbroad was 15 objectively unreasonable or contrary to clearly established federal 16 law. 17 statute] for overbreadth is strong medicine that is not to be casually 18 employed.” 19 (internal quotations omitted). 20 that invalidating the dirk or dagger statute is warranted in this 21 case. 22 D. 23 As the Supreme Court has stated, “[i]nvalidation [of a criminal United States v. Williams, 553 U.S. 285, 293 (2008) Petitioner has failed to demonstrate Accordingly, this claim does not merit relief. Prejudicial Conduct Finally, in Ground Four, Petitioner claims that the jury was 24 prejudiced by his outburst during voir dire. 25 is no merit to this claim. 26 27 (Petition at 6.) There During voir dire, in the presence of the prospective jurors, Petitioner interrupted the proceedings, exclaiming: 28 11 1 I don’t want you as my attorney. 2 don’t want him as my attorney. 3 want to represent myself. 4 dagger. 5 I want to represent myself. 6 going to--god damn kitchen knife. 7 I’m out of here. I I want my Faretta rights. I It’s a kitchen knife not a Don’t tell me to shut up. I can’t talk to the guy. My apologies to everyone. I’m (RT 14-15.) 8 The trial court ordered the jurors to leave the courtroom and 9 conducted a Marsden hearing, ultimately denying Petitioner’s motion to 10 relieve counsel.2 11 asked the court to dismiss “the entire panel based on it having been 12 tainted and poisoned by [Petitioner’s] acting out, defiant and foul 13 attitude and words.” 14 explaining: 15 (RT 22-23; CT 49.) (RT 23.) Petitioner’s attorney then The court denied the request, If that was the rule, . . . anyone who didn’t like the 16 way things were going could act up in front of the jury so a 17 person can’t get a panel if he likes just by acting up. 18 will instruct the jury that they cannot use his antics, 19 things he said or did for or against him in this trial. 20 I’ll ask if anyone can follow that instruction and then 21 we’ll proceed with the jury selection. 22 23 24 I (RT 23; CT 50.) Thereafter, the jurors returned to the courtroom and the trial court instructed them: 25 26 27 28 2 Petitioner elected not to participate in the trial for the rest of the day, which continued in his absence. (RT 23; CT 50.) He did, however, return for trial the following day. (CT 79.) 12 1 What [Petitioner] said in open court in front of you is 2 not evidence in this case and, therefore, cannot be 3 considered by any of you as evidence in this case. 4 any reason at all. 5 6 Or for (RT 25.) The trial court did not err in concluding that Petitioner was not 7 entitled to a new venire because he acted up during jury selection. 8 If trial courts had to bring in a new venire every time a defendant 9 acted up, the defendants would be in charge and jury selection could 10 only proceed for as long as they chose to cooperate. 11 not the rule and, in fact, the rule is to the contrary. 12 v. Allen, 397 U.S. 337, 345 (1970) (“A court must guard against 13 allowing a defendant to profit from his own wrong 14 Williams v. Calderon, 48 F. Supp.2d 979, 1027 (C.D. Cal. 1998) 15 (holding petitioner “may not inject error into the proceeding by his 16 own actions”). 17 Clearly, that is See Illinois . . . .”); see also Here, the outburst was short-lived and, immediately after it was 18 over, the trial court instructed the jurors that they could not 19 consider it in rendering a verdict. 20 that instruction. 21 Presumably, the jury followed Weeks v. Angelone, 528 U.S. 225, 234 (2000). Finally, if there was error, any error was harmless. Petitioner 22 has not demonstrated how his brief tirade during voir dire altered the 23 outcome of this case where the evidence of his guilt was so 24 overwhelming. 25 Cir. 2000) (finding “admission” of Petitioner’s outburst in front of 26 the jury did not prejudice him in light of other evidence); Williams, 27 48 F. Supp.2d at 1028 (finding petitioner’s in-court “outburst did not 28 prejudice him at trial”). See, e.g., Drayden v. White, 232 F.3d 704, 710 (9th As such, this claim is rejected. 13 1 V. 2 CONCLUSION 3 For these reasons, the Petition is denied and the action is 4 dismissed with prejudice. 5 substantial showing of the denial of a constitutional right, he is not 6 entitled to a certificate of appealability. 7 § 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003); Slack 8 v. McDaniel, 529 U.S. 473, 484 (2000); see also Fed. R. App. P. 22(b). 9 10 Further, because Petitioner has not made a See 28 U.S.C. IT IS SO ORDERED. DATED: September 7, 2018. 11 12 13 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-State Habeas\VARGAS, O 9143\Memorandum Opinion and Order.wpd 14
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