The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [Doc. 22]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Tulare County Superior Court, Petitioner was convicted of willful and premeditated attempted murder, robbery, and residential burglary (Cal. Penal Code*fn1 §§ 664/187(a), 211, 459), with gang allegations (§ 186.22(b)). Petitioner was sentenced to an aggregate term of thirty-one years to life. (CT 242-246, 251-253, 297-302.)
Petitioner filed a notice of appeal. On July 25, 2005, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (Lodged Doc. No. 1.) The California Supreme Court denied review. (Lodged Doc. No. 2.)
Petitioner filed the instant federal petition for writ of habeas corpus on October 11, 2007. (Court Doc. 1.) The Court granted Petitioner's motion to stay the action and hold the petition in abeyance while he returned to exhaust the state court remedies. (Court Doc. 13.)
On January 23, 2009, Petitioner filed an amended petition-the operative pleading in this action. (Court Doc. 22.) Respondent filed an answer to the amended petition on May 27, 2009, and Petitioner filed a traverse on July 16, 2009. (Court Docs. 32, 35.)
On January 17, 2001, at around 2 a.m. six gang members arrived at Alberto Contreras home and asked if they could "party" there. Contreras let them in his home and the group had a friendly encounter at first. (RT 35.) Contreras knew three of the six men. (Id.) The men were drinking beer. (RT 15, 16.) Contreras lived with a man identified as "Julia" who dressed like a woman and was present that evening. (RT 37, 58.) Contreras sold drugs at the time and had a reputation as being a drug dealer. (RT 60-61.)
One of the men, identified by Contreras as "Rafa" went into Contrera's bedroom and laid on the bed with him. The two were watching pornographic videos and smoking crank. (RT 37, 57, 71.) Julia was in the living room with the other men, who were also smoking crank. (RT 37.) Approximately 30 to 60 minutes later, two of the men, identified as Pulga and Camello went into the bedroom. (RT 55, 71-73.) Rafa put an object to Contreras head-which he said was a gun, tied his arms around his back with a television cord, and placed him on the ground. (RT 17-18.) Contreras was tied up, face down on the floor for approximately three to four hours. (RT 21.) During this time, five of the men were ransacking the house looking for money and drugs, and all six of the men took turns beating and kicking Contreras. (RT 19-20.) He was hospitalized for eight days. (RT 24-25, 28-29, 46-47, 58.) The men threatened to kill Contreras if he did not disclose the drugs and money. (RT 40.)
Contreras specifically identified Petitioner as one of the men who beat and threatened to kill him. Contreras also saw Petitioner leave the residence with his stereo. As a result of the beating, Contreras suffered 40 stab wounds in his back. (RT 23.) His upper back was stabbed and his kidney and lung were punctured. (RT 12, 23, 46.) Contreras's home was burned down after he testified during the first trial of one of the men. (RT 51.)
Tulare County Sheriff's Detective Mario Martin responded to the incident. (RT 96-97.) Contreras's bedroom was in complete disarray. (RT 98.) There was a large pool of blood on a pillow in the middle of the bedroom. (RT 99-101.) A bloody kitchen knife was located near a sofa in the living room on the floor. Sanchez ("Julia") was in his bedroom with the blankets pulled over him. His hands, face, and hair were full of blood. He appeared "frazzled" and scared. Sanchez did not cooperate with police and refused medical treatment. (RT 101-103.)
Contreras was interviewed at the hospital by Detective Martin. Although he appeared to be in severe pain and had some difficulty communicating, he was able to identify Petitioner from a photographic lineup as one of the assailants. (RT 105-109.) Detective Martin went to Petitioner's home and found some of the property taken during the robbery. (RT 109-112.)
Tulare County Deputy Sheriff Joe Aguilar worked in the local gang unit. (RT 150.) Aguilar identified the local gangs in the area. (RT 162.) The Big Time Locos ("BTL"), claimed Orosi as their area. (RT 166.) The rival gangs are the Brown Pride Catela, North Side Orosi, and East Side Orosi. (RT 171.) It is common for gangs to commit assault and drive-by shootings. (RT 172.)
On September 9, 2000, Petitioner admitted that he was a member of the BTL gang. In July 2002, Detective Aguilar served Petitioner with a STEP notice which informed him that he was recognized as a member of a gang by the State of California. He was further advised that if he committed any gang-related offenses he could be subject to gang enhancements. (RT 178-190, 187.)
Aguilar found a "role call" of gang members in the possession of Ponce. (RT 178.) Petitioner's moniker, "Chuchi" was on the list. In addition, Petitioner had "BTL" tattooed on his neck and "south side 13" tattooed on his arm. Assailants Rafeal Ponce and Jose Jimenez were also known gang members. (RT 177.)
It was Detective Aguilar's opinion that the instant offenses were committed for the benefit of the BTL criminal street gang since it would have provided the gang with drugs and money. It also promoted the gang's violent and retaliatory reputation within the community. These actions demonstrated to rival gang members that the BTL gang is violent and will control its own turf. (RT 190-192.)
Petitioner presented the testimony of his sister, Catalina Ponce, in support of his alibi defense. At the time of the offense, she lived with Petitioner in Orosi. (RT 233-234.) She testified that Petitioner was home the evening before the offense and was asleep when she woke up for work around 5:00 a.m. or 5:30 a.m. (RT 235.) She acknowledged speaking to several sheriff's deputies but denied speaking to Deputy Sheriff Domingo Flores. (RT 240.)
Tulare County Sheriff's Deputy Domingo Flores assisted in the investigation of this case. (RT 258.) On January 17, 2001, he spoke to Petitioner's sister, Catalina. She told him that she had not seen Petitioner since the night before, and she did not say that Petitioner was in bed earlier that morning. (RT 259-260.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this Court.
28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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.
28 U.S.C. § 2254(d). A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams (Terry) v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id., quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id.(citations omitted).
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, where the state court decided an issue on the merits but provided no reasoned decision, courts conduct "an independent review of the record . . . to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
C. Insufficient Evidence to Support Attempted Murder Conviction
Petitioner contends that there was insufficient evidence to support the jury's finding that he committed willful, premeditated, and deliberate attempted murder.
The California Court of Appeal rejected this claim stating:
[Petitioner] argues that the evidence presented at trial was not sufficient to prove that the attempted murder was willful, deliberate, and premeditated, and that therefore he was not eligible for the life sentence required by [California Penal Code] section 664, subdivision (a). "When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof." (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
Because [Petitioner] was prosecuted as an aider and abettor, the prosecution was required to show only that his confederates attempted to commit murder in a willful, deliberate, and premeditated fashion and that he aided and abetted them. (People v. Lee (2003) 31 Cal.4th 613, 627.)
The prosecution did not have to prove that [Petitioner], himself, acted willfully, deliberately, and with premeditation. In a prosecution for aiding and abetting, "'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'" that the People must prove. (People v. Prettyman (1996) 14 Cal.4th 248, 261.) So long as the direct perpetrator's crime is a reasonably foreseeable consequence of crimes the aider and abettor encouraged or facilitated, the aider and abettor may be held liable for that reasonably foreseeable crime. (Id. at p. 262.) This rule is known as the natural and probable consequences doctrine. (Id. at p. 261.)
[Petitioner] argues that the natural and probable consequences doctrine does not apply, and therefore an aider and abettor "'must share the specific intent of the [direct] perpetrator,'" i.e., here, must share in the willfulness, deliberation, and premeditation. (People v. Lee, supra, 31 Cal.4th at p. 624.) We see no reason why the doctrine would not apply here, however, and [Petitioner] supplies none. We do note (although the parties do not raise the point) that the court failed to mention the natural and probable consequences doctrine when it instructed on aiding and abetting. It also did not instruct the jury regarding so-called "target crimes" in connection with aiding and abetting. These are the crimes, charged or uncharged, that an aider and abettor participated in, of which the crime of conviction was a reasonably foreseeable consequence. Here, there was evidence of target crimes of robbery and burglary (of which [Petitioner] was convicted), as well as assault.
A trial court has a duty to instruct sua sponte on target crimes as part of the aiding-and-abetting instruction if the prosecution is relying on the natural and probable consequences doctrine. (People v. Prettyman, supra, 14 Cal.4th at p. 266.) The record indicates that a party (it is unclear which one) requested these instructions, but the request was either refused or withdrawn. Instead, the court's instructions addressed natural and probable consequences only as part of an instruction on conspiracy. [Petitioner] has not argued that this was prejudicial error, and Prettyman held that this type of instructional error can be harmless. (Id. at pp. 270-271, 274.) We conclude that [Petitioner] has conceded the issue by failing to raise it.
In any event, there was ample evidence that [Petitioner] encouraged or facilitated the crimes that led up to the attempted murder. He participated in, and was convicted of, the burglary and robbery. According to Contrera's testimony, [Petitioner] was present with the others all night as Contreras lay bound on the floor and the house was ransacked. [Petitioner] was among those who kicked Contreras as he lay on the floor and personally removed some of Contreras's property. A reasonable jury easily could find from this evidence that [Petitioner] aided and abetted in the crimes that led up to the attempted murder.
The jury could also find, beyond a reasonable doubt, that the premeditated murder was a reasonably foreseeable consequence of the crimes [Petitioner] aided and abetted. A robbery and burglary in which the victim is bound, beaten, and threatened with death obviously is a crime in which it is reasonably foreseeable to each participant that a coperpetrator may harbor and carry out a deliberate plan to kill the victim.
Finally, there was also ample evidence to support a reasonable jury's conclusion that [Petitioner's] confederates committed the attempted murder willfully, deliberately, and with premeditation. In People v. Anderson (1968) 70 Cal.2d 15, 26-27, 73 Cal. Rptr. 550, our Supreme Court described three types of evidence that are relevant in determining whether premeditation, willfulness, and deliberation have been proved: (1) evidence of planning activity before the killing; (2) evidence about the prior relationship between the killer and victim that indicates the killer's motive; and (3) evidence about the nature of the killing indicating that it was done according to a preconceived design. The law does not, however, "require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive." (People v. Pride (1992) 3 Cal.4th 195, 247.) The ultimate question is "whether the evidence supports an inference that the killing occurred as the result of pre-existing reflection rather than unconsidered or rash impulse." (Ibid.)
In this case, the victim testified that he was the six gang members' drug dealer, and that they beat him and threatened to kill him if he did not disclose the location of his money and drugs. This is evidence of prior relationship and motive. Contreras also testified that he was bound, made to lie on the floor, beaten, and threatened over a period of several hours before he was stabbed 30 to 40 times. This is evidence of planning activity before the attempted killing. It also shows that the nature of the attempted killing indicates reflection and design. It is inconsistent with a theory of rash impulse.
Based on this evidence, a reasonable jury could infer that the six gang members came to their drug dealer's house to take advantage of his drugs and hospitality. They would then steal what they hoped would be a significant stash of drugs and drug money and kill him, at least if they were dissatisfied with the results of the robbery. Alternatively, the jury could reasonably infer that the perpetrators developed a plan to murder Contreras after they were inside his house. In sum, the evidence was sufficient to prove that [Petitioner] was guilty of attempted willful, deliberate, and premeditated murder. (Lodged Doc. No. 1, Opinion, at 4-7.)
The law on insufficiency of the evidence claim is clearly established. The United States Supreme Court has held that when reviewing an insufficiency of the evidence claim on habeas, a federal court must determine whether, viewing the evidence and the inferences to be drawn from it in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Sufficiency claims are judged by the elements defined by state law. Id. at 324, n. 16. Sufficiency claims are judged by the elements defined by state law. Id. at 324, n. 16. In a habeas corpus proceeding, a petitioner "faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1278-1279 (9th Cir. 2005). In addition, when a federal court reviews the factual record "that supports conflicting inferences [it] 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.
Petitioner was tried as an aider and abettor or co-conspirator in the attempted murder charge. As such, under California law, there is no requirement that he personally acted in a premeditated and willful manner under section 664(a). The conspiracy theory was amply supported by the evidence, and there is not a reasonable probability that the trial's outcome would have been different had the trial court instructed on the natural and probable consequences doctrine in relation to the burglary and robbery charges. As a result, there is sufficient evidence to establish that Petitioner was guilty of willful and premeditated attempted murder which was reasonably foreseeable from burglary and robbery. Petitioner contends the appellate court erroneously referenced the natural and probable consequences doctrine under an aiding and abetting liability theory; however, the court also noted correctly that Petitioner was tried as a co-conspirator of his fellow gang members and not a direct perpetrator of the attempted murder. (Lodged Doc. No. 1, Opinion at 6-7; cf. CT 104-105; RT 266-267, 284-285, 294, 307.) It was not unreasonable for the appellate court to find that some evidence supports the jury's finding of willful, premeditated, and deliberate murder. Petitioner's claim to the contrary is without merit.
D. Failure to Instruct on Lesser-Included-Offense of Attempted Voluntary Manslaughter
Petitioner contends that the trial court erred by failing to instruct the jury on attempted voluntary manslaughter as a lesser included offense to attempted murder.
The Court of Appeal disagreed with Petitioner and ruled as follows:
[Petitioner] argues that the court erred when it rejected a prosecution-requested instruction on attempted voluntary manslaughter as a lesser-included offense of attempted murder. He contends that the court's duty was to give the instruction sua sponte, so his own failure to request it or object to the court's refusal did not waive the issue.
A trial court must give an instruction on a lesser-included offense "'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'" (People v. Barton (1995) 12 Cal.4th 186, 194-195.) The court must give the lesser-included-offense instruction only if the evidence that the offense was less than charged is substantial enough to merit consideration by the jury. (Id. at p. 195, fn. 4.) Instructions must be given on all lesser-included offenses of which this is true. (People v. Breverman (1998) 19 Cal.4th 142, 161.)
In this case, the prosecutor requested an attempted voluntary manslaughter instruction in anticipation of a defense theory that the stabbing arose from a sexual encounter between ...