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Williams v. McGrath

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


September 20, 2005

ERIS LENDELL WILLIAMS, PETITIONER,
v.
JOE MCGRATH, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER DENYING SECOND AMENDED PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner Eris Lendell Williams is a prisoner of the State of California; he is incarcerated at the Pelican Bay State Prison in Crescent City. He brings this petition seeking a writ of habeas corpus pursuant to Title 28 U.S.C. section 2254. On January 7, 2004, Respondent was ordered to show cause why the writ should not be granted. On February 18, 2004, Respondent filed an answer supported by a memorandum of law, the State trial record and the unpublished opinion of the California Court of Appeal. Petitioner has filed a traverse. Having considered all of the papers filed by the parties and the State court trial record, the Court DENIES the petition for a writ of habeas corpus.

BACKGROUND

The statement of facts is taken from the unpublished opinion of the Sixth Appellate District of the California Court of Appeal in People v. Williams, H020030 (Dec. 18, 2000)(Opinion).

On September 10, 1998, four men perpetrated a robbery at the Bank of Santa Clara in Milpitas: defendants Williams and Vaughn, Muhammad Foucha, and Caleb Sealy.

The four men drove to the bank in a white Honda Accord. The Honda was owned by Erika Fabricius. It had been missing since six days earlier: on September 4, 1998, at about 10:00 p.m., her son Peter Fabricius had parked the Honda in a parking garage near San Jose State University. When he returned to the parking garage at 1:00 a.m., the Honda was missing.

The bank robbery commenced at about 11:00 a.m. Sealy entered the bank first and scouted it out. He returned to the Honda and remained in the car while the other three men entered the bank. They were wearing masks on their faces and gloves on their hands. Williams was carrying a .45 caliber pistol. One of them shouted, "everybody get down, this is a take over, robbery."

Williams approached the assistant manager and pointed his gun at her. Meanwhile, Vaughn and Foucha jumped over the tellers' counter and attempted to open the money drawers. One teller's drawer was locked and could not be opened. A second teller's drawer was unlocked. Foucha took over $7,000 from that drawer, including a packet of "bait money." The package of bait money contained a dye pack designed to explode when it was taken through the front door.

The three men left the bank and got into the Honda, with Foucha driving. There was a bucket of water on the floor in the front passenger's section, and the men placed the money in the bucket in hopes of diffusing any tracking device. However, the dye pack exploded, creating a cloud of red smoke in the car.

Brian Kent saw the Honda leave the bank parking lot. He followed the Honda in his TCI cable van. The Honda was going 50 to 60 miles per hour. During the pursuit, Williams attempted to deter Kent by firing his gun at the TCI van. After a few blocks, the Honda crashed into a Thunderbird driven by Sarah Jane Whitman. As a result of the crash, Foucha's head hit the rearview mirror, leaving him with a gash on the head.

The four men exited the Honda after the crash. Williams and Sealy ran down the street. Vaughn approached Kent, put a gun to Kent's head and ordered him out of the TCI van. Foucha got into the TCI van and drove it off.

Williams was detained shortly after the incident. He was wearing long dark pants that were soaked with water below the knees, and a white t-shirt that was stained with red dye. The red dye's chemical characteristics matched those of the red dye pack inside the bank's bait money. Vaughn was also detained nearby.

Investigation of the Honda revealed the bucket of water, which contained some of the money from the robbery. Water from the bucket had spilled inside the car. The investigation also revealed that the Honda's ignition had been jimmied with a screwdriver. An expended .45 caliber bullet casing and Williams's resume and cover letter were also found in the Honda.Williams, Vaughn, Foucha, and Sealy were jointly charged, by information. In count 1, all four defendants were charged with attempted second degree robbery. (§§ 211, 212.5, subd. (c), 664.) In count 2, all four defendants were charged with second degree robbery. (§§ 211, 212.5, subd. (c).) In count 3, all four defendants were charged with carjacking. (§ 215.) In count 4, all four defendants were charged with unlawfully taking or driving a vehicle. (Veh. Code, § 10851, subd. (a).) In count 5, Foucha alone was charged with hit and run causing injury. (Veh. Code, § 20001, subds. (a) & (b)(1).) In count 6, all four defendants were charged with conspiracy to commit robbery. (§ 182, subd. (a).) (footnote omitted).

As to counts 1 and 2, the information alleged that Williams personally used a firearm (§ 12022.53, subd. (b)) and that the other three defendants were armed with a firearm (§ 12022, subd. (a)(1)). As to count 3, the information alleged that Vaughn personally used a firearm and that the other three defendants were armed with a firearm. As to count 4, the information alleged that all four defendants were armed with a firearm. As to count 5, the information alleged that Foucha was armed with a firearm.

Finally, the information alleged that Williams had two "strike" convictions (§ 1170.12), one prior serious felony conviction (§ 667, subd. (a)), and had served one prior prison term (§ 667.5, subd. (b)).

Foucha and Sealy subsequently pled guilty to certain counts. Williams and Vaughn were tried jointly by jury. Williams elected not to present evidence on his behalf. Vaughn testified and admitted that he participated in the bank robbery, but asserted that he did not know about the plan until 15 minutes before the robbery commenced. Vaughn denied that he put a gun to Kent's head during the carjacking. He asserted he was one of the two men who fled from the Honda after it collided with the Thunderbird.

Williams and Vaughn were convicted of all five charged counts, and the jury found true each of the weapon use and arming allegations. The trial court subsequently found true each of the prior conviction and prior prison term allegations as to Williams.

As to Williams, the trial court imposed terms of 25 years to life for each of the five substantive counts: consecutive terms for counts 2 and 3 (robbery and carjacking) and concurrent terms for counts 1, 4 and 6 (attempted robbery, unlawfully driving or taking a vehicle, and conspiracy). It imposed a consecutive 10-year term for the firearm use allegation associated with count 2 (robbery), a concurrent term for the firearm use allegation associated with count 1 (attempted robbery), and stayed the terms for the arming allegations. It imposed a consecutive 5-year term for the prior serious felony allegation and stayed the term for the prior prison term allegation. Williams's aggregate sentence was an indeterminate term of 50 years to life and a determinate term of 15 years. . . .

The trial court ordered both defendants [Williams and Vaughn] to pay direct victim restitution as well as restitution fines. The direct victim restitution ordered included payments to Sarah Jane Whitman, the driver of the Thunderbird involved in the collision with the Honda. Opinion at 2-5.

The California Court of Appeal affirmed the judgment of conviction. On February 21, 2001, the California Supreme Court denied Petitioner's petition for review. On December 13, 2002, Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court, which was denied without reasoned analysis on July 16, 2003.

Petitioner filed his original federal petition for a writ of habeas corpus on February 25, 2002, and he filed an amended petition on June 28, 2002. On July 17, 2003, the Court stayed Petitioner's habeas proceedings because Petitioner had failed to exhaust his State court remedies. On October 1, 2003, Petitioner filed the second amended petition (SAP), which raises six claims, all of which are exhausted for purposes of federal review:

(1) ineffective assistance of counsel arising out of counsel's decision not to challenge an allegedly biased juror for cause, (2) ineffective assistance of counsel arising out of counsel's decision not to investigate the impact of the juror's alleged comments, (3) insufficiency of evidence to support Petitioner's carjacking conviction, (4) insufficiency of evidence to support Petitioner's conviction for unlawfully taking the white Honda used in the crime, (5) insufficiency of evidence to support the enhancement for unlawful taking of the white Honda, and (6) invalidity of the restitution award to Ms. Whitman, the driver of the Thunderbird.

STANDARD OF REVIEW

A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in State court unless the State court's adjudication of the claims: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 363, 412-13 (2000). "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

The only definitive source of clearly established federal law under Title 28 U.S.C. section 2254(d) is in the holdings of the Supreme Court as of the time of the relevant State court decision. Id. at 412. But circuit law may be persuasive authority for purposes of determining whether a State court decision is an unreasonable application of Supreme Court law. Clark v. Murphy, 331 F.3d 1062, 1070-71 (9th Cir.), cert. denied, 124 S.Ct. 446 (2003).

In determining whether the State court's decision is contrary to, or involved an unreasonable application of, clearly established federal law, a federal court looks to the decision of the highest State court to address the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000). If no reasoned decision exists, an independent review of the record is the only means of deciding whether the State court's rejection of the claim was objectively reasonable. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

If constitutional error is found, habeas relief is warranted only if the error had a "'substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).

DISCUSSION

I. Ineffective Assistance of Trial Counsel Arising out of Counsel's Decisions Not to Challenge Allegedly Biased Juror and Not to Investigate Impact of Juror's Alleged Comments

A. Background

Petitioner claims that his trial counsel was ineffective because counsel did not (1) challenge for cause a juror who made allegedly biased comments, or (2) investigate the potential impact of those alleged comments on other prospective jurors. Petitioner first raised this issue in his application for a writ of habeas corpus to the California Supreme Court.

On the morning of February 18, 1999, during the jury selection phase of Petitioner's trial and in the presence of Petitioner and his counsel, the court convened to address a note that was given to the court by Prospective Juror #35. The note addressed alleged comments made by Prospective Juror #55 that Prospective Juror #35 had overheard the previous day.

According to the Clerk's Transcript (CT), the following occurred, beginning at 9:20 a.m.:

The Court is in session to discuss a note given to the court yesterday by a prospective juror regarding having overheard some alleged comments made by another prospective juror. Prospective Juror #35 is now present in the courtroom; there are no other prospective jurors present. The Court queries said juror regarding what was allegedly said by Juror #55. After Prospective Juror #35 addresses the Court, said juror is excused back to the jury assembly room. 9:30 AM: Prospective Juror #55 is now present in the courtroom. The Court questions said juror regarding the alleged comments, etc. The People question said juror. The Court then excuses Prospective Juror #55 back to the jury assembly room. Both sides pass for cause. The Court finds that good cause does not exist for excusal of either juror.

CT at 383 (emphasis in original). There is no transcript of these proceedings.

In both the SAP and traverse, Petitioner asserts that Prospective Juror #35 overheard Prospective Juror #55 state the following: "I don't know why we're wasting our time, we know they're guilty." In support of this claim, Petitioner cites only CT 383, which does not identify what Prospective Juror #55 allegedly said. There is no evidentiary support for Petitioner's contention that Prospective Juror #55 made this particular comment. The record does indicate that defense counsel did not question Prospective Juror #55 regarding the alleged comments, and that defense counsel did not challenge the jurors for cause.

B. Applicable Federal Law

A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.

In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, Petitioner must establish two things. First, he must establish that counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness" under prevailing professional norms. Id. at 687-88. Second, he must establish that he was prejudiced by counsel's deficient performance, that is, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered as the result of the alleged deficiencies. Id. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995) (applauding district court's refusal to consider whether counsel's conduct was deficient after determining that petitioner could not establish prejudice), cert. denied, 516 U.S. 1124 (1996). The Strickland framework for analyzing ineffective assistance of counsel claims is considered to be "clearly established Federal law, as determined by the Supreme Court of the United States" for the purposes of Title 28 U.S.C. section 2254(d) analysis. See Williams (Terry) v. Taylor, 529 U.S. 362, 404-08 (2000).

C. Analysis

1) Decision Not to Challenge

Juror for Cause Petitioner argues that trial counsel's decision not to question or challenge Prospective Juror #55 for cause fell below an objective standard of reasonableness.

The trial court made a factual determination that no good cause existed to excuse either Prospective Juror #35 or Prospective Juror #55. In a federal habeas proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). And, in the Ninth Circuit, there is a presumption that State courts follow the law, even when they fail to so indicate. Jeffers v. Lewis, 38 F.3d 411, 415 (9th Cir. 1994).

Here, Petitioner has not shown that there was good cause to challenge Prospective Juror #55, nor is there evidence that good cause would have been shown if trial counsel had questioned Prospective Juror #55 about his alleged comments. Petitioner claims that Prospective Juror #55 made comments to several prospective jurors indicating a predisposition to finding Petitioner guilty. However, this contention is not supported by the evidence or the record. In Petitioner's traverse, he acknowledges that the record does not contain evidentiary support for his claim. Petitioner has not shown, by clear and convincing evidence, that the trial court erred when it ruled that there was not good cause to excuse Prospective Juror #55. Thus, Petitioner has not demonstrated that trial counsel's decision not to challenge the juror for cause was objectively unreasonable.

Furthermore, Petitioner has not satisfied the second prong of Strickland analysis because he has not shown that counsel's decision not to challenge Prospective Juror #55 prejudiced him in any way. Even if Prospective Juror #55 did say what Petitioner alleges he said, Petitioner has not shown that Prospective Juror #55 was seated as a juror in his trial. Furthermore, Petitioner has not shown that Prospective Juror #35, or any other prospective juror who overheard the alleged comments made by Prospective Juror #55, was seated on his jury. Petitioner has not shown that there is a reasonable likelihood that his trial would have produced a different result if counsel had challenged Prospective Juror #55 for cause.

Petitioner also appears to request an evidentiary hearing to determine what Prospective Juror #55 said and why trial counsel did not question him regarding his alleged comments. To obtain an evidentiary hearing, a petitioner must allege facts that, if proven, would entitle him to relief. Turner v. Calderon, 281 F.3d 851, 890 (9th Cir. 2002). Here, Petitioner's unsupported allegations as to what Prospective Juror #55 said do not establish prejudice which would entitle him to relief. As discussed above, even if Prospective Juror #55 did say what Petitioner alleges he said, Petitioner has not alleged or submitted evidence that Prospective Juror #55, or any other prospective juror who overheard his alleged comments, was a seated juror in the trial.

2) Decision Not to Investigate

Petitioner also argues that trial counsel's decision not to investigate the potential impact that Potential Juror #55's alleged comments had on other prospective jurors fell below an objective standard of reasonableness. Again, however, the evidence does not support Petitioner's claim that Potential Juror #55 made the specific comments that Petitioner alleges he did, nor is there evidence that anybody other than Potential Juror #35 heard the alleged comments. The trial court did question, in the presence of Petitioner and his counsel, both Potential Juror #55 and Potential Juror #35 before ruling that no good cause existed to excuse either. And, also in the presence of Petitioner and his counsel, the prosecution questioned Prospective Juror #55 regarding his alleged comments. Defense counsel's decision not to investigate further the effect of Potential Juror #55's alleged comments was not objectively unreasonable.

Moreover, Petitioner has not shown that he was prejudiced by counsel's decision not to investigate further Potential Juror #55's alleged comments. Again, Petitioner has submitted no evidence that Potential Juror #55, or anybody who heard his alleged comments, was seated as a juror in his trial. Petitioner has made no showing that trial counsel's decision not to investigate further Potential Juror #55's alleged comments would likely have produced a different result at trial.

For the foregoing reasons, Petitioner has failed to establish a Sixth Amendment claim for the ineffective assistance of trial counsel. The State Supreme Court's denial of Petitioner's ineffective assistance of counsel claim was not unreasonable. Accordingly, this claim for habeas corpus relief is DENIED.

II. Carjacking Instruction and Sufficiency of Evidence to Support Carjacking Conviction

A. Background

The jury found Petitioner guilty, under California Penal Code section 215, of carjacking. In his appeal to the California Court of Appeal, Petitioner argued that the evidence presented at trial did not support his conviction of carjacking. The trial court instructed the jury it could reach if it found that the carjacking was a natural and probable consequence of the bank robbery. The Court of Appeal ruled as follows:

Both defendants contend that the trial court erred by instructing the jury, pursuant to CALJIC No. 6.11, that it could convict them of carjacking (§ 215; count 3) if it found that the carjacking was a natural and probable consequence of the conspiracy's criminal objective.

The trial court instructed the jury pursuant to CALJIC No. 6.11 as follows: "A member of a conspiracy is not only guilty of a particular crime that to his knowledge his confederates agreed to and did, but is also liable for the natural and probable consequence of any crime of any co-conspirator to further the object of the conspiracy, even though that crime was not intended as part of the agreed upon objective, and even though he was not part of the intended commission of that crime. You must determine whether or not the defendant is guilty of, as a member of the conspiracy to commit the originally agreed upon crime. And if so, whether the crime alleged in count three was perpetrated by co-conspirators in furtherance of that conspiracy, and was a natural and probable consequence of the agreed upon criminal objective of that conspiracy."

In People v. Hardy (1992) 2 Cal.4th 86, the California Supreme Court rejected the argument that CALJIC No. 6.11 "improperly extended [the defendant's] liability to acts by coconspirators of which he was unaware, as well as acts that he had not personally authorized." (Id. at p. 188) The court explained: "The challenged instruction correctly states the long-settled law of conspiracy. As we explained regarding the analogous situation of aiding and abetting liability in People v. Croy (1985) 41 Cal.3d 1: 'a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury.' (Id. at p.12, fn. 5, italics added; see People v. Luparello (1986) 187 Cal.App.3d 410, 441 [quoting Croy in a conspiracy case].)" (People v. Hardy, supra, 2 Cal.4th at p. 188, original italics.)

As an intermediate court, we must follow the California Supreme Court in approving CALJIC No. 6.11 as a proper statement of law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) We also note that CALJIC No. 6.11 is consistent with Pinkerton v. United States (1946) 328 U.S. 640, where the court held that a defendant can be held liable for a substantive offense committed by a coconspirator if the offense was "done in furtherance of the conspiracy," fell "within the scope of the unlawful project," and could "be reasonably foreseen as a necessary or natural consequence of the unlawful agreement." (Id. at pp. 647-648.)

We next address Williams's contention that the evidence did not support a finding that the carjacking was a natural and probable consequence of the conspiracy to commit the bank robbery.

"For a criminal act to be 'reasonably foreseeable' or a 'natural and probable' consequence of another criminal design it is not necessary that the collateral act be specifically planned or agreed upon, nor even that it be substantially certain to result from the commission of the planned act. For example, murder is generally found to be a reasonably foreseeable result of a plan to commit robbery and/or burglary despite its contingent and less than certain potential." (People v. Nguyen (1993) 21 Cal.App.4th 518, 530-531.) The question is "whether the collateral criminal act was the ordinary and probable effect of the common design or was a fresh and independent product of the mind of one of the participants, outside of, or foreign to, the common design."

(Id. at p. 531.)

"The determination whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. . . . This does not mean that the issue is to be considered in the abstract as a question of law. . . . Rather, the issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident. . . . Consequently, the issue does not turn on the defendant's subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. . . ." (People v. Nguyen, supra, 21 Cal.App.4th at p. 531, internal citations omitted.)

Here, Williams concedes that the collision with Whitman's Thunderbird was a reasonably foreseeable result of the robbery. The four co-conspirators clearly contemplated that they would need to make a quick getaway from the bank. The fact they brought along a bucket of water indicates they were aware that the money they took would likely contain a tracking device that would make it necessary for them to leave the bank as fast as possible. A reasonable person would certainly know that such an attempted escape, by car, could result in a collision with another car.

Williams argues, however, that the carjacking was not a reasonably foreseeable result of the robbery. We disagree. The fact that the four men used the stolen Honda as their getaway vehicle indicates that they contemplated they would need to abandon the vehicle during their attempt to reach a place of temporary safety. It was reasonably foreseeable that if they did need to abandon the Honda, the four men would continue in their attempt to reach a place of temporary safety. Finally, it was reasonably foreseeable that one or more of the co-conspirators would attempt to obtain another vehicle in order to do so, and that force would be used in doing so.

We conclude that the evidence supports a finding that the carjacking was a natural and probable consequence of the conspiracy to commit the bank robbery.

Opinion at 6-8.

B. Applicable Federal Law

According to established federal law, an allegation that the evidence in support of a State conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim, which, if proven, justifies federal habeas relief. Jackson v. Virginia, 443 U.S. 307, 321-24 (1979). However, a federal court reviewing collaterally a State court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). Rather, the "relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. See id. at 324; Payne, 982 F.2d at 338.

C. Analysis

Here, Petitioner asserts that there was insufficient evidence to support his conviction for carjacking. Specifically, Petitioner argues that the instructions that the jury received on the carjacking charge relieved the prosecution of the burden of proving each element of the offense beyond a reasonable doubt, because the instructions allowed the jury to make presumptions regarding Petitioner's intent.

Petitioner's argument must fail. A jury instruction is unconstitutional, and habeas relief is available, only where "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal citations omitted). CALJIC 6.11, which Petitioner challenges in his SAP, embodies the Supreme Court's ruling in Pinkerton that a co-conspirator may be convicted of any crime committed by a co-conspirator that is reasonably foreseeable as a necessary or natural consequence of the unlawful conspiracy. 328 U.S. at 647-48. As the California Court of Appeal noted in denying Petitioner's appeal of his conviction, the California Supreme Court has upheld CALJIC 6.11 as correctly stating the law of conspiracy. Hardy, 2 Cal. 4th at 188. Thus, Petitioner's argument that CALJIC 6.11 was an impermissible or misleading instruction lacks merit.

For the foregoing reasons, Petitioner has failed to establish instructional error or the insufficiency of evidence to support his carjacking conviction. Accordingly, this claim for habeas corpus relief is DENIED.

III. Sufficiency of Evidence to Support Conviction and Enhancement for Unlawful Taking of White Honda

A. Background

The jury found Petitioner guilty, under California Vehicle Code section 10851, of unlawfully taking or driving the white Honda. The jury also found that Petitioner was armed while unlawfully taking or driving the vehicle, which, under California Penal Code section 12022, enhanced his sentence on that charge. On appeal from his conviction, Petitioner challenged the sufficiency of evidence to convict him under section 10851 and to enhance his sentence under section 12022.

The Court of Appeal rejected both arguments. Under Vehicle Code section 10851, it is illegal to take or drive a vehicle without the consent of the owner and with the intent to deprive the owner, either temporarily or permanently, of title to or possession of the vehicle. A defendant may also be convicted of being an accomplice to the driver. People v. Miles, 272 Cal. App. 2d 212, 218 (1969). On appeal, Petitioner argued that there was no evidence presented at trial that he had taken the car or that he knew that it had been stolen. He cited People v. Clark, 251 Cal. App. 2d 868, 874 (1967), in which the court ruled that an accomplice must have knowledge, at the time he is aiding or assisting the driver, that the car had been taken unlawfully. The Court of Appeal ruled that it was reasonable for the jury to find that Petitioner had the requisite knowledge based upon evidence that the Honda's ignition had been pried off and that Foucha was using a screwdriver as a key when he drove the vehicle away from the bank robbery. Opinion at 12-13. The court further ruled that the jury could reasonably have concluded that Petitioner, by entering into the conspiracy to rob the bank, had encouraged Foucha to drive the Honda unlawfully. Id. at 13.

The Court of Appeal also ruled that there was sufficient evidence to support the jury's finding on the arming enhancement.

A defendant is armed with a firearm pursuant to section 12022, subdivision (a)(1) if, "at some point" during the commission of the substantive offense, a principal has a firearm "available for use in furtherance of" the substantive offense. (People v. Bland (1995) 10 Cal.4th 991, 1001; see also People v. Gonzalez (1992) 8 Cal.App.4th 1658, 1662.) There must be a "nexus or link" between the firearm and the substantive offense: "'[T]he firearm must have some purpose or effect with respect to the [underlying] crime; its presence or involvement cannot be the result of accident or coincidence.' [Citation.]" (People v. Bland, supra, 10 Cal.4th at pp. 1001, 1002, italics omitted.)

Opinion at 14. The court ruled that Petitioner possessed a gun during the unlawful driving of the Honda and that there was a nexus or link between the firearm and the unlawful driving; the court ruled that the nexus was established when Petitioner fired the gun at the pursing TCI van.

B. Analysis

1) Unlawful Taking or Driving

A rational jury could have found that the evidence presented at trial was sufficient to convict Petitioner of unlawfully driving the Honda. In the SAP and traverse, Petitioner argues that there is no evidence linking him to the taking of the Honda from the San Jose State campus, and further that there was insufficient evidence to support a finding that he aided or abetted the driving of the vehicle. As to Petitioner's first argument, section 10851 proscribes both the unlawful taking and the unlawful driving of a vehicle; thus, Petitioner could have been convicted under the statute even if there was no evidence that he was involved in the initial taking of the Honda.

Petitioner's second argument also must fail. A reasonable jury could have found that, by entering into the conspiracy to rob the bank and fleeing the robbery in the Honda, Petitioner encouraged and abetted the unlawful driving of the getaway vehicle.

2) Arming Enhancement

A reasonable jury also could have found that the arming enhancement applied. Petitioner argues that there was insufficient evidence to show a nexus between the firearm and the unlawful driving of the vehicle. However, the jury heard evidence, not only that Petitioner carried the gun in the Honda, but that he also discharged his firearm at Kent and the TCI van as Foucha fled the robbery in the Honda. Thus, it was reasonable for the jury to conclude that the firearm was used to maintain possession of the Honda, thereby establishing the required link between the firearm possession and the unlawful driving of the vehicle.

For the foregoing reasons, Petitioner has failed to establish an insufficiency of evidence to support his conviction under section 10851 or the arming enhancement under section 12022. Accordingly, this claim for habeas corpus relief is DENIED.

IV. Validity of Restitution Judgment

A. Background

At sentencing, Petitioner was ordered to pay restitution to Ms. Whitman, the driver of the Thunderbird into which the Honda crashed during its flight from the bank robbery, in an amount including but not limited to $500.

Petitioner argued on appeal that Ms. Whitman was not a victim of any of the offenses of which he was convicted; Petitioner noted that only Foucha was charged with hit-and-run driving in violation of California Vehicle Code section 20001. The Court of Appeal rejected that argument:

Here, it is clear that Whitman "suffer[ed] losses as a result of criminal activity." (Cal. Const., art. I, § 28(b).) Her car was damaged during the robbery, which was ongoing as the four men attempted to reach a place of temporary safety. Thus, Whitman was a direct victim of the robbery, and as such, she was entitled to receive restitution from defendants. Opinion at 17.

B. Analysis

In the SAP and traverse, Petitioner argues that, because he was not convicted of hit-and-run driving, Ms. Whitman was not a victim of any crime of which he was convicted. Petitioner maintains that the restitution award violates his constitutional right to due process.

Restitution is a matter of State sentencing law. For purposes of federal habeas review, federal courts defer to the State court's interpretation of State sentencing laws. Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993). "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). Here, the Court of Appeal ruled that, under California Penal Code section 1202.4, Ms. Whitman was entitled to restitution from the co-conspirators in the bank robbery because she incurred economic loss as a result of that crime. Thus, the State court did not misapply State sentencing law. Petitioner has not established that the restitution judgment included in his sentencing order was fundamentally unfair.

CONCLUSION

For the foregoing reasons, the second amended petition for a writ of habeas corpus is DENIED. The Clerk of the Court shall enter judgment and close the file.

IT IS SO ORDERED.

20050920

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