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Herrera v. Biter

United States District Court, C.D. California

March 24, 2002

EDGARDO HERRERA, Petitioner,
v.
MARTIN D. BITER, Warden, Respondent.

          MEMORANDUM DECISION AND ORDER

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Effective October 17, 2013, Edgardo Herrera ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition") .[1] (Dkt. No. 1) . On March 3, 2014, Respondent filed an Answer to the Petition with an accompanying Memorandum of Points and Authorities ("Ans. Mem.") . (Dkt. No. 12) . On December 22, 2015, Petitioner filed a First Amended Petition for Writ of Habeas Corpus, and he filed the operative Second Amended Petition ("SAP") effective January 21, 2016. (Dkt. Nos. 24, 38-39, 41) . On March 11, 2016, Respondent filed a Supplemental Answer to the SAP as well as a memorandum of points and authorities in support of the Supplemental Answer ("Supp. Ans. Mem."). (Dkt. No. 46). Respondent has also lodged documents from Petitioner's state proceedings, including the Clerk's Transcript ("CT") and Reporter's Transcript ("RT") . (Dkt. Nos. 13, 17, 31) . Petitioner filed a Reply on April 8, 2016. (Dkt. No. 48).

         The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 9, 14-15). For the reasons discussed below, the Petition is DENIED and this action is DISMISSED WITH PREJUDICE.

         II. PRIOR PROCEEDINGS

         On December 7, 2010, a Los Angeles County Superior Court jury convicted Petitioner of three counts of second-degree robbery in violation of California Penal Code ("P.C.") § 211 and also found it to be true that a principal personally used a firearm during the robberies within the meaning of P.C. § 12022(a) (1) and that Petitioner committed the robberies for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members within the meaning of P.C. § 186.22(b).[2] (CT 403-05, 409-11; RT 4805-08). On January 15, 2011, Petitioner admitted he had suffered a prior "strike" conviction under California's Three Strikes Law, P.C. §§ 667(b)-(i) & 1170.12(a)-(d), and a prior serious felony conviction within the meaning of P.C. § 667(a)(1). (CT 414; RT 5101-03). On March 10, 2011, the trial court sentenced Petitioner to a prison term of 30 years. (CT 421-24, 426-27; RT 5406-07).

         Petitioner appealed his convictions and sentence to the California Court of Appeal (2d App. Dist., Div. 7), which affirmed the judgment in an unpublished decision filed August 9, 2012. (Lodgments Al, A5-A7). On September 11, 2012, Petitioner filed a petition for review in the California Supreme Court, which denied the petition on October 31, 2012. (Lodgments B1-B2).

         Effective July 31, 2014, Petitioner filed a petition for writ of habeas corpus in Los Angeles County Superior Court, which denied the petition on November 20, 2014. (Lodgment CI; Dkt. No. 34-1 at 39-40). Petitioner thereafter filed a petition for writ of habeas corpus in the California Court of Appeal, which denied the petition on January 14, 2015. (Dkt. No. 34-1 at 42) . Effective February 10, 2015, Petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on July 8, 2015. (Dkt. Nos. 34-1, 37).

         III. FACTUAL BACKGROUND

         The following facts, taken from the California Court of Appeal's unpublished decision on direct review, have not been rebutted with clear and convincing evidence and are therefore presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.l (9th Cir. 2009).

In October 2009 [, ] Mario Frias, Jesus Nunez, Arturo Frias, and Victor Vasquez were walking to a party when they were approached by two men. One asked Mario Frias where he was from, and he responded, "Nowhere, " signifying that he was not a gang member. The man demanded that Mario Frias give him the contents of his pockets. Mario Frias refused and slapped the man's hand away when he reached for Frias's pocket. The man hit Mario Frias in the head with a pistol. He went through Nunez's pockets and hit Nunez in the head with the gun.
Mario Frias ran across the street, but two men jumped from a nearby car, demanded his possessions, then attacked him when he claimed to have nothing to give them. [Petitioner] was the driver of the car; he remained in the car and gave orders to the assailants, including an instruction to be sure to take the men's possessions. [Petitioner] was holding a shiny, rounded object that was shaped like a bat and that made a sound like a gun being loaded. The Frias brothers and Nunez were beaten and robbed. Three of the attackers left in the car [Petitioner] drove.

(Lodgment Al at 2).

         IV. PETITIONER'S CLAIMS

         The Petition raises seven grounds for federal habeas relief. In Ground One, Petitioner contends he was denied due process of law because there was insufficient evidence to prove his identity as one of the robbers. (SAP at 5) .[3] In Ground Two, Petitioner alleges he was denied due process of law because there was insufficient evidence to prove the gang enhancements since the prosecution failed to establish a "pattern of criminal gang activity" and the gang's "primary activities." (Id.). In Ground Three, Petitioner asserts the trial court denied him due process of law when it instructed the jury that it could consider evidence of Petitioner's gang activity for the purpose of deciding identity, which Petitioner claims was tantamount to a directed verdict that Petitioner committed the robberies. (Id. at 5-6) . In Ground Four, Petitioner alleges: (a) the trial court violated the Confrontation Clause by admitting gang expert Detective Eduardo Aguirre's testimony that Petitioner had told other officers he was a Lott 13 gang member named Fatty; and (b) admission of Detective Aguirre's expert testimony deprived Petitioner of due process of law. (Id. at 6-16). In Ground Five, Petitioner maintains that Detective Aguirre employed unduly suggestive photographic identification procedures to induce Arturo Frias to identify Petitioner as one of the robbers. (Id. at 17-33) . In Ground Six, Petitioner alleges he received ineffective assistance of counsel when his trial counsel failed to object that Detective Aguirre's testimony violated the Confrontation Clause and failed to object to the unduly suggestive photographic identification procedures. (Id. at 33) . In Ground Seven, Petitioner asserts that his appellate counsel rendered ineffective assistance by failing to raise Grounds Four through Six. (Id.).

         V. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011) . Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court, or was based upon an unreasonable determination of the facts. Id. at 100 (citing 28 U.S.C. § 2254(d)). "This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]" Cullen v. Pinholster, 5 63 U.S. 170, 181 (2011) (citations and internal quotation marks omitted).

         Petitioner raised Grounds One through Three in his petition for review to the California Supreme Court, and he raised Grounds Four through Seven in his habeas corpus petition to the California Supreme Court, which denied the petitions without comment or citation to authority. (Lodgments B1-B2; Dkt. Nos. 34-1, 37). The Court "looks through" the California Supreme Court's silent denials to th43e last reasoned decision as the basis for the state court's judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."); Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) ("[W]e conclude that Richter does not change our practice of 'looking through' summary denials to the last reasoned decision - whether those denials are on the merits or denials of discretionary review." (footnote omitted)), as amended, 733 F.3d 794 (9th Cir. 2013). Therefore, the Court will consider the California Court of Appeal's reasoned opinion addressing Grounds One through Three, [4] and the Los Angeles County Superior Court's opinion addressing Grounds Four and Six.[5] Berghuis v. Thompkins, 560 U.S. 370, 380 (2010) . However, because no state court has provided a reasoned decision as to Ground Seven, this Court must conduct "an independent review of the record" to determine whether the decision to deny those claims was contrary to, or an unreasonable application of, clearly established federal law. Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014); Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) . Finally, the Court will address Ground Five de novo.[6] See Thompkins, 560 U.S. at 390 ("Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review[.]"); Norris v. Morgan, 622 F.3d 1276, 1290 (9th Cir. 2010) (affirming denial of habeas corpus petition when claim failed even under de novo review); Frantz v. Hazey, 533 F.3d 724, 735-37 (9th Cir. 2008) (en banc) (a federal habeas court can review constitutional issues de novo before performing a § 2254(d) (1) analysis).[7]

         VI. DISCUSSION

         A. Petitioner Is Not Entitled To Habeas Relief On His Insufficient Evidence Claims

         In Ground One, Petitioner contends there was insufficient evidence to prove his identity as one of the robbers because witnesses provided inconsistent testimony, a suggestive identification procedure was employed, and Arturo Frias, the only witness to identify Petitioner, had limited cognitive abilities. (SAP at 5). In Ground Two, Petitioner alleges there was insufficient evidence to support the gang enhancements because only one of the two predicate acts presented to the jury was committed by a member of Alcoholics Causing Ruckus ("ACR"), and there was insufficient evidence to determine ACR's primary activities. (Id.). Petitioner's claims are without merit.

         1. California Court of Appeal's Opinion

         The California Court of Appeal rejected Petitioner's challenge to the sufficiency of the evidence of identity, stating:

Viewed in the light most favorable to the prosecution, we conclude that the evidence is sufficient to sustain [Petitioner's] conviction. At trial, Arturo Frias positively identified [Petitioner] as the driver of the car involved in the robberies. He had previously identified [Petitioner] as the driver from a photographic six-pack in the days after the robbery. Moreover, [Petitioner] implicitly acknowledged his involvement in the crimes: in jail, three months after the robbery, he wrote a letter to an associate expressing confidence that "most likely I[']m getting the gun enhan[ce]ment dismissed [be]cause I had no gun." He wrote that a private investigator was going to prompt "that fool" - the victim who had identified him - "to say that I hit him up in a party a month before the rob[b]ery and hopefully he does because I was busted a month before and if he does say that I[']m going to ask for them to remove his testimony and if that happen[]s then I'll be firme [be]cause he[']s the only one who I.D. [identified] me. The 2 other vict[i]ms never saw me so I think I should be ok." This evidence supports the jury's verdict in this case.
The circumstances of the identification of [Petitioner] were addressed at trial, and the jury heard evidence from Arturo Frias about suggestive and prejudicial statements made by the officer conducting the photographic lineup. The jury did not conclude that the circumstances of the identification compromised that identification. "In the instant case, 'there is in the record the inescapable fact of in-court eyewitness identification. That alone is sufficient to sustain the conviction.' Next, when the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. Third, the evidence of a single witness is sufficient for proof of any fact." Beyond this identification evidence, [Petitioner's] own words established that he was present and involved in the robberies and indicated consciousness of guilt. We cannot say that the evidence was insufficient to establish that [Petitioner] participated in the robberies.

(Lodgment Al at 3-5 (citation omitted)).

         The California Court of Appeal also determined there was sufficient evidence to support the gang enhancements, stating:

The evidence was sufficient to support the true finding on the gang enhancement allegation. [¶] The prosecution attempted to establish the requisite pattern of criminal activity with respect to ACR with evidence of crimes committed by people named Andrew Rodriguez and Roger Mendoza. [Petitioner] points to testimony of gang expert witness Detective Eduardo Aguirre on cross-examination in which Aguirre acknowledged that Rodriguez had maintained he was a member of an associated gang, Lott 13, and that another officer, purportedly the source of information that Rodriguez was an ACR member, had actually written down on an investigation card (a "gang hard card") that Rodriguez claimed to be a member of Lott 13. Aguirre, however, also testified that he understood Rodriguez to be an ACR member based on having spoken with Rodriguez and speaking to people who know him. Regardless of whether Rodriguez admitted to being a member of ACR, the jury could reasonably conclude that he was an ACR member. Moreover, because the offense being tried may also constitute one of the predicate offenses for the gang enhancement statute, even if the Rodriguez evidence were to be considered insufficient, [Petitioner] still has not shown that there was insufficient evidence of two predicate acts to support the gang enhancement allegation.
Next, [Petitioner] contends that there was insufficient evidence that criminal acts were one of the primary activities of ACR because Aguirre only listed a series of criminal acts the gang had been involved in as a response to the prosecutor's question asking him to state the primary activities of ACR. [Petitioner] claims the evidence was deficient because Aguirre did not state that criminal activity was one of the gang's primary activities, but we find this argument unpersuasive. Aguirre was asked, "What are the primary activities of ACR?" and responded, "ACR, over the years, they've been involved in shootings, robberies, stolen vehicles, gun possessions, sales of narcotics, vandalism." We decline to attach talismanic significance to the words "primary activities": the jury was entitled to understand this response as an enumeration responsive to the specific question concerning the gang's primary activities.
Here, . . . Aguirre testified that he was familiar with the gang and that he had investigated shootings and robberies that ACR members had committed, and he identified a number of specific criminal offenses in response to a question about the gang's primary activities. This testimony was supported by the evidence of the charged offense, a coordinated street robbery involving multiple ACR members. Second, Aguirre testified about one ACR member's conviction for gun possession and another member's conviction for robbery. There was sufficient evidence to support the gang enhancement allegation.

(Lodgment Al at 5-7 (citations omitted)).

         2. Analysis

         To review the sufficiency of the evidence in a habeas corpus proceeding, the court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted); Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012) (per curiam); see also Coleman v. Johnson, 132 S.Ct. 2060');">132 S.Ct. 2060, 2065 (2012) (per curiam) ("[T]he only question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality.") . "MA] reviewing court must consider all of the evidence admitted by the trial court, ' regardless [of] whether that evidence was admitted erroneously, " McDaniel v. Brown, 558 U.S. 120, 131 (2010) (per curiam) (citation omitted), all evidence must be considered in the light most favorable to the prosecution, Lewis v. Jeffers, 497 U.S. 764, 782 (1990); Jackson, 443 U.S. at 319, and if the facts support conflicting inferences, reviewing courts "must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326; Cavazos v. Smith, 132 S.Ct. 2, 6 (2011) (per curiam). Furthermore, under AEDPA, federal courts must "apply the standards of [Jackson] with an additional layer of deference." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005); Boyer v. Belleque, 659 F.3d 957, 964-65 (9th Cir. 2011) . These standards are applied to the substantive elements of the criminal offense under state law. Jackson, 443 U.S. at 324 n.16; Boyer, 659 F.3d at 964; see also Johnson, 132 S.Ct. at 2064 ("Under Jackson, federal courts must look to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." (citation and quotation marks omitted)).

         a. Robbery

         Petitioner does not challenge the sufficiency of the evidence to prove that a robbery was committed, [8] but instead argues there was insufficient evidence for the jury to conclude he was one of the robbers. (SAP at 5) . The Court disagrees with this contention.

         The jury heard evidence that on October 3, 2009, Mario Frias ("Mario"), Arturo Frias ("Arturo"), Jesus Nunez and Victor Vazquez were walking down a street when they were confronted by two men, one of whom was armed with a pistol. (RT 1228-33, 1561, 1565-66, 1830-32, 1846, 2143). The armed man asked the group where they were from, which Mario and Nunez understood as asking if they were "gang member[s] or something, " and Mario and Nunez responded "nowhere." (RT 1231-32, 1246, 1565) . The man then told Mario "[l]et me have whatever you have in your pockets" and reached for Mario's pockets, but Mario slapped the man's hands away and the man hit Mario in the head with the pistol. (RT 1231, 1233) . Mario ran across the street to distract the men from his brothers. (RT 1233-34). At that point, Mario saw a green Toyota Camry pull up. (RT 1234-35). Two men jumped out of the car and approached Mario while the driver remained inside and told the other men to "[m]ake sure you get their stuff." (RT 1235, 1250, 1845) . The two men demanded Mario give them what he had in his pockets and, after he refused, they beat him, knocked him to the ground, and took his wallet. (RT 1236-38) . While this was happening, Arturo and Nunez were attacked by the two men who initially approached them, and Arturo's wallet was taken. (RT 1238-39, 1565-67, 1843-44, 1849-50) . The attackers got into the Camry, which drove away. (RT 1239-40, 1263, 2149). Arturo observed the Camry's driver during the robbery and identified Petitioner as that person.[9] (RT 1845-46, 1851-52, 2108, 2120-21, 2183-84, 3029-30).

         Additionally, while incarcerated, Petitioner wrote several letters that were discovered in a search of his cell. (RT 1556-59). In one of these letters, which was dated December 30, 2009, Petitioner described a plan to discredit Arturo's testimony and stated that Arturo was the only one to identify Petitioner, and that if his testimony was removed Petitioner the "2 other two victims never saw me[, ] so I think that I should be ok." (CT 270). Petitioner also noted that "most likely [he was] getting the gun enhancement dismissed [because] I had no gun." (Id.). In a subsequent undated letter, Petitioner urged friends to manufacture evidence to exonerate him of the gang enhancement by "show[ing] that we [ACR and Lott 13] don't get along." (CT 272-73).

         Based on Arturo's identification of Petitioner and Petitioner's "own words establish[ing] that he was present and involved in the robberies and indicat[ing] consciousness of guilt[, ]" the California Court of Appeal held sufficient evidence supported the jury's conclusion that Petitioner participated in the robberies. (Lodgment Al at 3-5) . Petitioner disputes this conclusion, arguing the evidence against him was insufficient because there were inconsistencies in the witnesses' description of the robbers and the only witness to identify Petitioner - Arturo - had cognitive difficulties. (SAP at 5). However, "evidence is not rendered insufficient simply because there are discrepancies in the eyewitnesses' descriptions of the robber[s]."[10] United States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996). Rather, "it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial[, ]" Smith, 132 S.Ct. at 4; Matthews, 132 S.Ct. at 2152, and the Court " 'must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict.'" Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997) (quoting Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)). Here, the issues surrounding Arturo's identification of Petitioner were thoroughly explored during Petitioner's trial and were extensively argued to the jury, which nevertheless convicted Petitioner.[11] (See, e.g., RT 1811-14, 1826, 1873-74, 1876, 1882, 1885-86, 1899-1900, 2103-04, 2108-10, 2114-19, 2438-96, 2702-63, 2768-77, 3009-12, 3013-23, 3947-4007). Under these circumstances, the state court's determination that there was sufficient evidence to support the jury's conclusion that Petitioner participated in the robberies was not contrary to, or an unreasonable application of, clearly established federal law. Jackson, 443 U.S. at 319; Boyer v. Chappell, 793 F.3d 1092, 1101 (9th Cir. 2015), cert, denied, 1365. Ct. 1446 (2016); see also Ngo v. Giurbino, 651 F.3d 1112, 1114 (9th Cir. 2011) ("'Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.'" (citations omitted)); Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) (Jackson standard satisfied based on victim's testimony since there was no indication testimony was "physically impossible and simply could not have occurred as described"); United States v. McClendon, 782 F.2d 785, 790 (9th Cir. 1986) (single eyewitness's in-court identification of McClendon as present in getaway car was sufficient to support McClendon's robbery conviction); United States v. Larios, 640 F.2d 938, 940 (9th Cir. 1981) ("The testimony of one witness ... is sufficient to uphold a conviction."); Oliva v. Hedgpeth, 600 F.Supp.2d 1067, 1087 (CD. Cal. 2009) ("Identification of the defendant by a single eyewitness may be sufficient to prove the defendant's identity as the perpetrator of a crime.'" (citations omitted)), affirmed by, 375 F.App'x 697 (9th Cir. 2010) .

         b. Gang Enhancement

         The California Street Terrorism Enforcement and Prevention Act ("STEP Act"), P.C. §§ 186.20 et seq., is a statutory scheme enacted to further the "eradication of criminal activity by street gangs[.]" P.C. § 186.21 (2010). The STEP Act "imposes various punishments on individuals who commit gang-related crimes - including a sentencing enhancement on those who commit felonies for the benefit of, at the direction of, or in association with any criminal street gang.'"[12] People v. Prunty, 62 Cal.4th 59, 67 (2015) (quoting P.C. § 186.22(b); italics omitted). The STEP Act defines a "criminal street gang" as "(1) ... an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) [that] has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute;[13] and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses')[14] during the statutorily defined period."[15] People v. Hernandez, 33 Cal.4th 1040, 1047 (2004) (footnotes added); People v. Sengpadychith, 26 Cal.4th 316, 319-20 (2001) .

         In Ground Two, Petitioner alleges there was insufficient evidence to support his gang enhancements because the prosecution did not demonstrate the predicate acts or primary activities necessary to prove that ...


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