United States District Court, N.D. California
October 3, 2005.
Carlos Albert Perez, Petitioner,
D.K. Butler, Warden, Respondent.
The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Carlos Albert Perez, a state prisoner incarcerated at Folsom
State Prison, has filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. On July 15, 2002, Judge Charles R.
Breyer issued an order to show cause (docket no. 2). On November
13, 2002, Judge Breyer granted Respondent's motion to dismiss in
part and granted Petitioner's motion to amend the petition,
reinstating the petition as to four claims (docket no. 8). On
January 13, 2003, Respondent filed points and authorities as well
as the answer to the petition for writ of habeas corpus (docket
no. 10, 11). On January 14, 2003, the case was reassigned to this
Court (docket no. 13). On March 17, 2003, Petitioner filed a
traverse (docket no. 16). This order denies the petition for writ
of habeas corpus on the merits.
Petitioner was convicted by a jury in the Superior Court of the
State of California, Santa Clara County of assault by means of
force likely to produce great bodily injury upon David Ramirez,
battery with serious bodily injury upon David Ramirez, and
misdemeanor assault upon Rene Corral. The jury also found true an allegation that
Petitioner personally inflicted great bodily injury for purposes
of a three-year sentence enhancement. Petitioner admitted
allegations that he had been convicted of a serious or violent
felony and that he had served a prior prison term. The trial
court denied Petitioner's motion for a new trial based on
ineffective assistance of counsel as well as his motion to strike
the prior conviction. On November 19, 1999, Petitioner was
sentenced to 14 years in state prison.
The California Court of Appeal struck the prison-term
enhancement but otherwise affirmed the judgment and denied
Petitioner's request for state habeas relief. The Supreme Court
of California denied review on November 14, 2001. Petitioner
filed the instant petition April 29, 2002.
The facts underlying the charged offenses as found by the Court
of Appeal of the State of California, Sixth Appellate District,
are summarized as follows:
On September 24, 1998, David Ramirez and Rene Corral
were drinking beer at the Casey Jones bar in Gilroy.
An altercation began among six men. The owner
succeeded in making the group go outside to the
parking lot. A fight among 10 men then ensued.
Ramirez went outside to break up the fight but
concluded that his efforts would be unnecessary. He
began walking back inside the bar. A woman approached
him and started talking to him. Witnesses then saw
Petitioner strike Ramirez on the left side of the
face with his fist. According to Ramirez, he was
initially struck on the right back side of the head.
Ramirez collapsed. Witnesses say that when he tried
to get back up, Al Diaz kicked him in the face.
According to Ramirez, after the initial blow put him
on the floor, he tried to get up, was struck again,
fell again, and then was kicked and hit several times
in the face, nose and eye.
Dr. Roger Vigil treated Ramirez for fractures on the
left side of the face and nose, facial contusions and
abrasions, head trauma, and a bruise to the back of
the right ear. He testified as an expert in the field
of emergency medicine that a single blow or kick
could have caused all of the injuries to the left
side of Ramirez's face.
Ignacio Cervantes testified for the defense that he
went to the bar with Petitioner and Petitioner came
to his aid when he became involved in the fight
outside the bar. When the defense counsel asked
whether Petitioner had hit anyone when Petitioner
first came to his aid, Mr. Cervantes replied, "I
didn't see him hit anybody."
People v. Perez, No. 209431, unpublished op at 2-3 (Cal. Ct.
App.) (Pet. Ex A). STANDARD OF REVIEW
This Court may entertain a petition for a writ of habeas corpus
"in behalf of a person in custody pursuant to the judgment of a
state court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). The petition 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 claim: "(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." Id. § 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. 362, 413 (2000). Under the
"reasonable 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. An unreasonable determination of the facts
by the state court will be found if the federal court is left
with a "firm conviction" that the determination was wrong and the
one Petitioner urges was correct. Torres v. Prunty,
223 F.3d 1103, 1108 (9th Cir. 2000). In deciding whether the state court's
decision is contrary to, or 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
Petitioner's claim in a reasoned decision. LaJoie v. Thompson,
217 F.3d 663, 669 n. 7 (9th Cir. 2000). If the state court only
considered state law, the federal court must ask whether state
law, as explained by the state court, is "contrary to" clearly
established governing federal law. See Lockhart v. Terhune,
250 F.3d 1223, 1230 (9th Cir. 2001). If the state court, relying on
state law, correctly identified the governing federal legal
rules, the federal court must ask whether the state court applied
them unreasonably to the facts. See Lockhart, 250 F.3d at 1232. DISCUSSION
I. Claim of Jury Instruction Error
Petitioner was charged with an enhancement under Penal Code
section 12022.7(a). The enhancement provides that a person who
"personally inflicts great bodily injury on any person other than
an accomplice in the commission or attempted commission of a
felony . . . in addition and consecutive to the punishment
prescribed for the felony or attempted felony of which he or she
has been convicted, be punished by an additional term of three
years . . . (.)"
Using CALJIC 17.20, the trial court instructed the jury as
If you find beyond a reasonable doubt that a victim
or victims suffered great bodily injury, you must
then decide whether or not the defendant personally
inflicted the great bodily injury.
In order to prove that the defendant personally
inflicted great bodily injury, either of the
following must be proved beyond a reasonable doubt:
1. The defendant personally inflicted great bodily
2. (a) The defendant participated in a group beating;
(b) It is not possible to determine which assailant
inflicted which injuries; and
(c) The defendant's conduct was of a nature that
could have caused the great bodily injury.
Clerk's Transcript ("CT") at 263.
Petitioner contends that the instruction was improper because
it provided a standard of proof less than the constitutionally
required standard of proof beyond a reasonable doubt for every
element of the charged crime. Petitioner argues that the
instruction eliminated from the jury's consideration the
determination of whether Petitioner was the direct perpetrator of
the crime or merely an aider and abettor. According to
Petitioner, the use of CALJIC 17.20, defining personal infliction
of great bodily injury under California Penal Code § 12022.7(a),
violated his right to have an essential element of the
enhancement proven beyond a reasonable doubt. Petitioner contends
that the instruction served to lessen the prosecution's burden to
prove that he "personally inflicted" the injury due to the
language in the charge that defendant's conduct "was of a nature
that could have caused" the injury. Petitioner additionally
argues that the jury instruction improperly applied state law.
a. Legal Standard
A person in custody pursuant to the judgment of a state court
can obtain a federal writ of habeas corpus only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). In other
words, a writ of habeas corpus is available under § 2254(a) "only
on the basis of some transgression of federal law binding on the
state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.
1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)), cert.
denied, 478 U.S. 1021 (1986). It is unavailable for violations
of state law or for alleged error in the interpretation or
application of state law. See Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir.
1994); see, e.g., Moore v. Rowland, 367 F.3d 1199, 1200 (9th
Cir. 2004) (per curiam) (state's violation of its
separation-of-powers principles does not give rise to a federal
due process violation); Stanton v. Benzler, 146 F.3d 726, 728
(9th Cir. 1998) (state law determination that arsenic trioxide is
a poison as a matter of law and not an element of the crime for
jury determination is not open to challenge on federal habeas
review); Franklin v. Henry, 122 F.3d 1270, 1272-73 (9th Cir.
1997) (court was bound by state court finding that a violation of
state law had occurred, but still had to consider whether the
violation amounted to a federal constitutional error).
It is unavailable merely because "something in the state
proceedings was contrary to general notions of fairness or
violated some federal procedural right unless the Constitution or
other federal law specifically protects against the alleged
unfairness or guarantees the procedural right in state court."
Middleton, 768 F.2d at 1085. A state court's procedural or
evidentiary ruling may be subject to federal habeas review,
however, if it violates federal law, either by infringing upon a
specific federal constitutional or statutory provision or by
depriving the defendant of the fundamentally fair trial
guaranteed by due process. See Pulley v. Harris, 465 U.S. 37,
41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th
Cir. 1991); Middleton, 768 F.2d at 1085. A federal court can
disturb on due process grounds a state court's procedural or
evidentiary ruling only if the ruling was arbitrary or so
prejudicial that it rendered the trial fundamentally unfair. See
Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley v.
Sumner, 784 F.2d 984, 990 (9th Cir.) cert. denied,
479 U.S. 839 (1986).
The Due Process Clause of the Fourteenth Amendment protects the
accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged. See In re Winship,
397 U.S. 358, 364 (1970). This constitutional principle prohibits the
State from using evidentiary presumptions in a jury charge that
have the effect of relieving the State of its burden of
persuasion beyond a reasonable doubt of every essential element
of a crime. See Yates v. Evatt, 500 U.S. 391, 400-03 (1991);
Carella v. California, 491 U.S. 263, 265-66 (1989); Francis v.
Franklin, 471 U.S. 307, 313 (1985); Sandstrom v. Montana,
442 U.S. 510, 520-24 (1979).
The Supreme Court's holdings in Carella and Sandstrom
provide the controlling authority on mandatory presumptions in
jury instructions on habeas corpus review. Powell v.Galaza,
328 F.3d 558, 563 (9th Cir. 2003) (on remand from United States
Supreme Court). An instruction that creates a mandatory
presumption violates due process because it "directly
foreclose[s] independent jury consideration of whether the facts
proved establish? certain elements of [the charged offense] . . .
and relieve[s] the State of its burden of . . . proving by
evidence every essential element of [the] crime beyond a
reasonable doubt." Carella, 491 U.S. at 265-66 (citations
omitted); see Sandstrom, 442 U.S. at 521 (holding
unconstitutional jury instruction that "[t]he law presumes that a
person intends the ordinary consequences of his voluntary acts"
because the jury could have interpreted it as either a
burden-shifting or conclusive presumption); Powell,
328 F.3d at 563-64 (finding that court's midtrial instruction to jury that
defendant's testimony was admission that specific intent element
had been satisfied essentially directed jury's verdict, went
beyond mandatory presumption instructions in Carella and
Sandstrom, and was not cured by court's later instructions);
Patterson v. Gomez, 223 F.3d 959, 965-66 (9th Cir. 2000);
United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987).
A mandatory presumption can be reviewed for harmless error
because it is not equivalent to a directed verdict for the state
the jury is still required to find the predicate facts
underlying each element beyond a reasonable doubt. Carella,
491 U.S. at 266; but cf. Powell, 328 F.3d at 566-67 (harmless error
review inapplicable where trial court's midtrial instruction
effectively directed jury to find defendant guilty, thereby
depriving him of right to jury verdict under Sixth Amendment). To obtain federal collateral relief for errors in the jury
charge, Petitioner must show that the ailing instruction by
itself so infected the entire trial that the resulting conviction
violates due process. See Estelle v. McGuire, 502 U.S. 62, 72;
Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974) ("`[I]t must be
established not merely that the instruction is undesirable,
erroneous or even "universally condemned," but that it violated
some [constitutional right].'").
The California Court of Appeal addressed this issue in its
August 7, 2001 opinion denying Petitioner's direct appeal. The
Supreme Court of California issued a decision summarily denying
Petitioner's claim. Therefore, this Court looks to the analysis
of the Court of Appeal in considering Petitioner's claim of a due
process violation. Lajoie, 217 F.3d at 669.
The California Court of Appeal denied Petitioner's claim,
finding that the language of CALJIC 17.20 was not
constitutionally infirm. The Court found that the instruction,
which derives from a series of state criminal cases involving
group assaults, was based on the principal of concurrent
causation rather than an unconstitutional "presumption of guilt."
The Court, in a lengthy analysis of Petitioner's claim, stated
Defendant maintains that the instruction violated his
federal constitutional rights because it eliminated
from the jury's consideration the factual
consideration of causation, specifically whether
defendant was the direct perpetrator or an aider and
abettor. He relies on the language of Penal Code
section 12022.7, subdivision (a), which requires that
the accused personally inflict the injury upon the
victim. (People v. Cole (1982) 31 Cal.3d 568, 572
(Cole) ["the individual accused of inflicting great
bodily injury must be the person who directly acted
to cause the injury. The choice of the word
`personally' necessarily excludes those who may have
aided or abetted the actor directly inflicting the
injury:].) We disagree with the defendant.
In the group-beating situation, CALJIC 17.20 requires
that the defendant's conduct be "of such a nature
that, by itself, it could have caused the great
bodily injury." The language pinpointing conduct that
"could have caused the great bodily injury" excludes
the concept of conduct that "aids, promotes,
encourages or instigates, the commission of the
Defendant also contends that CALJIC 17.20 creates an
unconstitutional presumption of guilt. He relies upon
the language of the instruction that, he urges,
allows a true finding upon the mere possibility that
the defendant inflicted the great bodily injury
("could have caused the great bodily injury"). He
adds that the language then requires a defendant to
rebut the presumption of guilt by proving that
someone else personally inflicted the injury. Again,
we disagree with defendant's analysis.
CALJIC 17.20 is based on a comment to former CALJIC
17.20 which read: "When a defendant participates in a
group beating and it is not possible to determine which assailant inflicted which injury, he
or she may be punished with a great bodily injury
enhancement if his conduct was of such a nature it
could have caused the great bodily injury suffered by
the victim." (Comment to CALJIC No. 17.20.) This
comment is, in turn, derived from People v. Corona
(1989) 213 Cal.App.3d 589, 594 (Corona) . . . (.)
Perez, No. 209431, unpublished op at 8-9 (Cal.Ct.App.) (Pet.
The Court of Appeal reviewed the applicable state cases upon
which the CALJIC 17.20 definition of personal infliction of great
bodily injury is based. The Court also considered the doctrine of
concurrent liability under California law which provides for
criminal liability for a great bodily injury where a defendant's
acts cause a result "even though there is another contributing
cause." Id. (Citations omitted). The Court of Appeal found that
the definition of "personally causing" great bodily injury
embodied in CALJIC 17.20, which includes concurrently causing
such injury while participating in a group beating, was proper
under state law.
In considering the due process claim, the Court stated
In the concurrent causation situation, "The
prosecution need not disprove possible theories of
causation raised by the defense; its burden is met if
it produces evidence from which it may be reasonably
inferred that the defendant's act was a substantial
factor in producing the accident." (1 Witkin &
Epstein, Cal. Criminal Law (3d ed. 2000) Elements §
35, p. 242).
Thus, when the "could have caused" language of CALJIC
No. 17.20 is read and understood with the other group
beating language of the instruction (the defendant
participated and committed acts) rather than in
isolation, it is plain that the language refers to
the concept of concurrent causation (that the
defendant's act must be a substantial factor in
producing the injury) and not to a
presumption-of-guilt concept (that the defendant is
responsible if there is a possibility that the
defendant produced the injury).
Id. at 11.
Petitioner complains that the trial court's use of this
instruction relieved the prosecution of the burden of proving
that Petitioner personally caused great bodily injury within the
meaning of Penal Code Section 12022.7 in violation of his due
process rights. However, this Court disagrees.
The Court of Appeal found that the definition of great bodily
injury set forth in CALJIC 17.20, which includes the causation of
an injury concurrently with others in the "group beating"
context, was proper under California law. Petitioner takes issue
with the state's definition of "personal" causation under 12022.7
to include participation in a group assault where it is not possible to determine which assailant caused which injury and
Petitioner's conduct alone is such that it could have caused the
injury. However, there is nothing constitutionally impermissible
in defining "personally caused" in this manner.
As the Ninth Circuit has held, the "state is ordinarily free
within broad limits to define the elements of a particular
offense(.)" Stanton, 146 F.3d at 728. Thus, the Court of
Appeal's determination that the definition of "personally
causing" great bodily injury includes causing such injuries
concurrently with others in a group beating, is not open to
challenge on habeas review. Id. See, also, Estelle,
502 U.S. at 67-68; Stanton, 146 F.3d at 728, (holding that there is no
federal requirement that jury be allowed to determine whether
arsenic is a poison, where administration of poison is the
element state prosecution was required to prove.)
The enhancement instruction does not foreclose independent jury
consideration of whether the facts proved established the
elements of the charged offense. See, Carella,
491 U.S. at 265-66. That is, before the jury could decide whether Petitioner
personally caused the injury, the prosecution had the burden of
proving that Petitioner either personally caused the injuries or
did so by participating in a group beating where it was not
possible to determine who caused which injury and that Petitioner
engaged in conduct that was of a nature to have caused them. As
such, Petitioner's challenge does not state a claim for which
habeas relief is available. See, Estelle, 502 U.S. at 67-68;
Stanton, 146 F.3d at 728. Therefore, Petitioner's claim is
II. Claim of Insufficient Evidence
Petitioner alleges that there was insufficient evidence to
support his conviction for assault by means of force likely to
produce great bodily injury, as well as his conviction for
battery with serious bodily injury. In support of his argument,
Petitioner asserts that the only evidence that he struck the
victim on the left side of the face came from a witness whose
testimony was ambiguous. Petitioner also contends that one
witness at trial testified that Petitioner's blow landed on the
right side of victim's face, while the victim testified that he
was struck on the right back side of his head. Petitioner claims
that the lone testimony of one witness who located Petitioner's blow landing on the left side of
the victim's face contradicting the others does not constitute
sufficient evidence in support of the judgment. Pet. at 16.
a. Legal Standard
In examining claims regarding the sufficiency of evidence, the
Due Process Clause "protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged." In
re Winship, 397 U.S. at 364; see Leavitt v. Vasquez,
875 F.2d 260, 261 (9th Cir. 1989) (state must prove every element of crime
beyond a reasonable doubt), cert. denied, 493 U.S. 866 (1989);
see e.g., Fiore v. White, 121 S. Ct. 712, 714 (2001) (due
process violated where basic element of crime not proven because
statute did not prohibit defendant's conduct). A state prisoner
who alleges that the evidence in support of his state conviction
cannot be fairly characterized as sufficient to have led a
rational trier of fact to find guilt beyond a reasonable doubt
therefore states a constitutional claim, see Jackson v.
Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles
him to federal habeas relief, see id. at 324; see, e.g.,
Wigglesworth v. Oregon, 49 F.3d 578, 582 (9th Cir. 1995).
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 US 843 (1993).
The federal court "determines only 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.'" See id. (quoting
Jackson, 443 U.S. at 319). Only if no rational trier of fact
could have found proof of guilt beyond a reasonable doubt, may
the writ be granted. See Jackson, 443 U.S. at 324; Payne,
982 F.2d at 338; Miller v. Stagner, 757 F.2d 988, 992-93 (9th Cir.
1985), amended, 768 F.2d 1090 (9th Cir. 1985), cert. denied,
475 U.S. 1048, and cert. denied, 475 U.S. 1049 (1986); Bashor
v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984), cert. denied,
469 U.S. 838 (1984). Circumstantial evidence and inferences drawn
from that evidence may be sufficient to sustain a conviction.
Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Mere
suspicion and speculation, however, cannot support logical
inferences. Id. b. Analysis
The California Court of Appeal addressed this issue on direct
appeal in its August 7, 2001 opinion and the Supreme Court of
California summarily denied Petitioner's claim. Therefore, this
Court looks to the analysis of the Court of Appeal in considering
Petitioner's claim. Lajoie, 217 F.3d at 669.
With regard to Petitioner's claim, the California Court of
Appeal stated as follows:
Defendant principally relies on Ramirez's testimony
in which Ramirez stated that the initial blow to him
was to the right backside of his head, parallel to
his ear. Defendant therefore urges that the evidence
is insufficient to show that he hit Ramirez in the
face (the cause of Ramirez's great bodily injury) as
distinguished from the blow to the back of the right
But Ramirez also testified that he did not "remember
that much at all" about the evening. And two
eyewitnesses contradicted Ramirez and testified that
defendant hit Ramirez in the face.
Dayna Serrano testified: "There was a man yelling
saying you want a piece of me and just-I mean, just
I remember having to come back because I was
frightened and he hit him in the face. I just
remember blood coming I just remember all this
blood and him falling to the ground." Serrano then
identified defendant as the man who hit Ramirez in
Amy Kerr also testified to the same effect:
"[The Prosecutor]: Okay. And you said at some point
someone else came up to him and hit him?
"[The Prosecutor]: Where did this person hit him?
"A. In the face
"[The Prosecutor]: Where in the face?
"A. I believe on the left side; his cheek area, his
eye area. I can't tell exactly where.
"[The Prosecutor]: You said the left side, but you-.
"A. I'm sorry. It was the left side. As I'm looking
at David, it would be on my right side.
"[The Prosecutor]: Okay. And you had a little trouble
with that. Are you sure it was the left side?
Kerr then identified defendant as the man who hit
Ramirez on the left side of the face and added that,
although she did not see exactly where defendant's
hand landed, she saw blood coming from Ramirez's
face, nose and eye before Ramirez collapsed on the
ground and was kicked by Diaz.
It was in the jury's province to resolve the
contradiction in the testimony. From the testimony of
Serrano and Kerr, a reasonable trier of fact could
find defendant guilty beyond a reasonable doubt of
count 1 and find true the enhancement tied to count
BATTERY WITH SERIOUS BODILY INJURY
Defendant makes the same argument concerning count 2.
Our analysis is therefore the same. The evidence
whether defendant hit Ramirez in the face or in the
back of the head was in conflict. The jury resolved
the conflict against the defendant. Perez, No. 209431, unpublished op at 4-5 (Cal. Ct.
App.) (Pet. Ex A).
Petitioner has failed to show that the California Court of
Appeal's decision was contrary to, or an unreasonable application
of clearly established federal law. Federal law provides that in
determining if sufficient evidence exists to support a
conviction, the court "determines only 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,
443 U.S. at 319. Only if no rational trier of fact could have found proof of
guilt beyond a reasonable doubt, may the writ be granted. Id.
The Court of Appeal found that based on the testimony of the
victim and both witnesses to the assault, a reasonable trier of
fact could find Petitioner guilty beyond a reasonable doubt.
While the California Court of Appeal relied on state law and did
not identify the governing federal standard, it found that
"substantial evidence" supported the conviction. Where the state
court, relying on state law, correctly identified the governing
federal legal rules, the federal court must ask whether the state
court applied them unreasonably to the facts. See Lockhart,
250 F.3d at 1232. In this case, the state "substantial evidence"
standard is not contrary to established federal law, nor did the
state court apply the standard unreasonably to the facts. See
Lockhart, 250 F.3d at 1232. Accordingly, Petitioner's claim that
there was insufficient evidence to support his convictions for
assault by means of force likely to produce great bodily injury
and battery with serious bodily injury must be DENIED
III. Admission of Expert Testimony
Petitioner next argues that the trial court erroneously
admitted Dr. Vigil's expert testimony. In support of his
argument, Petitioner attacks the Court of Appeal's findings that
trial counsel's failure to object was without consequence
"because the issue was not sophisticated beyond common experience
[and] the injuries described by Dr. Vigil amount to a smashed
face and most people can imagine from common experience that a
single blow to the face could result in a smashed face." Pet. at
17 (quoting Perez, No. 209431, unpublished op at 6-7 (Cal. Ct.
App.)). Petitioner asserts that the California Court of Appeal
erred in presuming that ordinary members of the public are so familiar with physical altercations that
they can determine how much damage a single blow may cause.
a. Legal Standard
A state court's procedural or evidentiary ruling may be subject
to federal habeas review, if it violates federal law, either by
infringing upon a specific federal constitutional or statutory
provision or by depriving the defendant of the fundamentally fair
trial guaranteed by due process. See Pulley, 465 U.S. at 41;
Jammal, 926 F.2d at 919-20; Middleton, 768 F.2d at 1085. A
federal court can disturb on due process grounds a state court's
procedural or evidentiary ruling only if the ruling was arbitrary
or so prejudicial that it rendered the trial fundamentally
unfair. See Maass, 45 F.3d at 1357; Colley, 784 F.2d at 990.
The California Court of Appeal found that no prejudice was
shown where Petitioner failed to establish either deficient
performance or any prejudice from the admission of the expert
testimony. Petitioner's claim with regard to the admission of Dr.
Vigil's expert testimony fails to state a violation of federal
law. Additionally, Petitioner has not established that the
admission of testimony by Dr. Vigil deprived Petitioner of the
fundamentally fair trial guaranteed by the Due Process Clause.
Therefore, the Court of Appeal's findings were not contrary to,
or an unreasonable interpretation of, established Supreme Court
precedent. Therefore, Petitioner's claim of error is DENIED.
IV. Ineffective Assistance of Counsel
After the verdict was rendered against Petitioner, he retained
new counsel and filed a motion for a new trial based on
ineffective assistance of his trial counsel. The motion was
denied by the trial court.
According to Petitioner, his Sixth Amendment rights were
violated because his trial attorney provided ineffective
assistance. Specifically, Petitioner argues that his trial
counsel was ineffective for failing to secure the presence of
defense witnesses Leticia Gutierrez, Deanna Gutierrez, Damian
Gutierrez, Alfonso Diaz, and the emergency room doctor who
treated defense witness Cervantes. Petitioner further alleges
that his trial counsel was ineffective for failing to adequately investigate a discrepancy between Cervantes' testimony
at the preliminary hearing and the report of an interview with
him, prepared by a defense investigator prior to trial.
In its August 7, 2001 opinion, the California Court of Appeal
upheld the trial court's denial of a motion for a new trial and
summarily denied Petitioner's separate habeas claim without
issuing a reasoned decision. On November 14, 2001, the California
Supreme Court denied Petitioner's habeas petition without issuing
a reasoned decision. Therefore, this Court looks to the analysis
of the Court of Appeal on Petitioner's direct appeal in
evaluating Petitioner's ineffective assistance of counsel claim.
Lajoie, 217 F.3d at 669.
a. Legal Standard
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. The right to effective
assistance of counsel applies to the performance of both retained
and appointed counsel without distinction. See Cuyler v.
Sullivan, 446 U.S. 335, 344-45 (1980).
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, i.e.,
that it fell below an "objective standard of reasonableness"
under prevailing professional norms. Strickland,
466 U.S. at 687-88. Second, he must establish that he was prejudiced by
counsel's deficient performance, i.e., 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 reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id.
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 28 U.S.C. § 2254(d) analysis. See
Williams (Terry) v. Taylor, 529 U.S. 362, 404-08 (2000). A difference of opinion as to trial tactics does not constitute
denial of effective assistance, see United States v. Mayo,
646 F.2d 369, 375 (9th Cir.), cert. denied, 454 U.S. 1127 (1981),
and tactical decisions are not ineffective assistance simply
because in retrospect better tactics are known to have been
available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th
Cir.), cert. denied, 469 U.S. 838 (1984); see, e.g., Bell v.
Cone, 535 U.S. 635, 701-02 (2002) (not unreasonable for state
court to hold decision to waive closing argument in penalty
portion of capital case was competent tactical decision, when
waiver prevented "very persuasive" prosecutor from arguing);
United States v. Fredman, 390 F.3d 1153, 1157-58 (9th Cir.
2004) (counsel's admission that defendant was a "meth crook" by
profession and that he had been convicted in California for
conspiracy to manufacture methamphetamine was all part of
counsel's reasonable strategy to argue that defendant operated
independently from the Oregon conspiracy at issue); Brodit v.
Cambra, 350 F.3d 985, 994 (9th Cir. 2003) (state court
reasonably concluded that trial attorney provided effective
assistance of counsel where attorney declined to present evidence
favorable to defense out of concern that it would open door to
unfavorable evidence); United States v. Ferreira-Alameda,
815 F.2d 1251 (9th Cir. 1987) (counsel's stipulation to evidentiary
facts does not necessarily demonstrate incompetency of counsel);
United States v. Gibson, 690 F.2d 697, 703-04 (9th Cir. 1982)
(failure to make evidentiary objections does not render
assistance ineffective unless challenged errors can be shown to
have prejudiced the defense), cert. denied, 460 U.S. 1046
Tactical decisions of trial counsel deserve deference when: (1)
counsel in fact bases trial conduct on strategic considerations;
(2) counsel makes an informed decision based upon investigation;
and (3) the decision appears reasonable under the circumstances.
See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). The
investigation itself must be reasonable for an attorney's tactical decision based on that investigation to be
reasonable. Wiggins v. Smith, 539 U.S. 510, 523-24 (2003)
(tactical decision not to present life history as mitigating
evidence in capital sentencing trial unreasonable where counsel
failed to follow up on evidence that defendant had a miserable
1. Failure to Procure Witness Testimony
Petitioner argues that trial counsel was ineffective for
failing to make adequate efforts to secure the presence of
defense witnesses Leticia Gutierrez, Deanna Gutierrez, Damian
Gutierrez, Alfonso Diaz, as well as the emergency room doctor who
treated Cervantes. Petitioner argues that the testimony of these
witnesses was necessary to bolster the credibility of
Petitioner's key witness, Cervantes. Petitioner contends these
witnesses would have established that the fight was caused by a
member of the other group; that several men were beating
Cervantes when Petitioner went to his aid; and that Petitioner
had been hit by someone else before he hit anyone. According to
Petitioner, these witnesses would have supported his version of
events: that his actions were not those of an aggressor, but of
someone who, tried to protect a friend in danger, and
inadvertently pursued the wrong person.
In upholding the trial court's denial of Petitioner's motion
for a new trial based on ineffective assistance of counsel, the
Court of Appeal found that "in order to prevail on a claim of
ineffective assistance of counsel for failure to call a witness,
`there must be a showing from which it can be determined whether
the testimony of the alleged additional defense witness was
material, necessary, or admissible, or that defense counsel did
not exercise proper judgment in failing to call him.'" Perez,
No. 209431, unpublished op at 12 (Cal.Ct.App.) (Pet. Ex A)
(citing People v. Hill (1969) 70 Cal.2d 678, 690.) (internal
citations omitted). The Court of Appeal upheld the trial court's finding that trial
counsel had made adequate efforts to secure the witnesses'
testimony. At the hearing on the motion, the trial court found
that trial counsel had made efforts to subpoena witness Leticia
Gutierrez who, nonetheless, failed to appear; witness Diaz had
informed counsel that he would not testify on Fifth Amendment
grounds; and the declarations of Damian Gutierrez and Leticia
Gutierrez submitted in support of the motion left "a great deal
to be desired, in terms of inference." Id. at 13. Trial counsel
also attempted unsuccessfully to subpoena the emergency room
doctor who treated Cervantes and made a tactical decision not to
call the doctor who operated on him. Reporter's Transcript at 65.
The Court of Appeal found that Petitioner had failed to show
materiality because a mistake-of-fact defense depends upon a
mistake that disproves criminal intent and in this case, assault
and battery is characterized by "an intent merely to do a violent
act." Perez, No. 209431, unpublished op at 13 (Cal.Ct.App.)
(Pet. Ex A). Because a mistake-of-fact is not a defense to
assault and battery, the witness testimony was immaterial, and
thus irrelevant. Id.
The benchmark for judging any claim of ineffective counsel is
whether counsel's conduct so undermined the proper function of
the adversarial system that the trial cannot be relied on to have
produced a just result. Strickland, 466 U.S. at 686. The proper
standard for judging counsel's performance for an ineffective
assistance of counsel claim is that of reasonably effective
assistance. Id. at 687. While the Court of Appeal relied on
state law, the state cases correctly identified the governing
federal rule set forth in Strickland and the state court
reasonably applied them to the facts. See Lockhart,
250 F.3d at 1232.
Petitioner has failed to demonstrate that his trial counsel was
deficient for not presenting certain defense witnesses. The state
courts properly found that counsel made reasonable efforts to
effectively represent Petitioner; that trial counsel's tactical
decision not to call certain defense witnesses was justified; and that Petitioner has failed to show
prejudice. Strickland, 466 U.S. at 686. Therefore, the state
court's findings that counsel effectively represented Petitioner
was not contrary to, or an unreasonable application of clearly
established federal law.
2. Failure to Adequately Investigate Discrepancy in Witness
Petitioner also argues that his trial counsel was ineffective
for failing to adequately investigate a discrepancy between
Cervantes' testimony at the preliminary hearing and the report of
an interview with him prepared by the defense investigator, Mary
Avanti. Petitioner asserts that if trial counsel had properly
investigated, he would have noticed the discrepancy between the
investigator's report and Cervantes' testimony at the preliminary
examination. Finally, Petitioner argues that this omission was
prejudicial because it led to Cervantes being discredited as a
witness, resulting in Petitioner's conviction. Petitioner claims
that Cervantes' testimony would have supported the argument that
the attack on Ramirez was a reasonable mistake.
While the Court of Appeal did not separately address this
argument, the reasoning of the Court of Appeal decision applies
similarly to this claim. Petitioner has failed to show that trial
counsel's failure to adequately investigate the discrepancy in
Cervantes' testimony prejudiced his defense. Strickland,
466 U.S. at 694. As the Court of Appeal pointed out with regard to
Petitioner's other ineffective assistance of counsel claims,
mistake-of-fact was not a valid defense to the charges.
Therefore, Petitioner has not shown prejudice. Nor has he shown
that the state court's determination was contrary to, or an
unreasonable application of clearly established federal law.
Petitioner's claim of ineffective assistance of counsel is
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED. The clerk shall enter judgment in favor of
Respondent and close the file.
IT IS SO ORDERED.
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