The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). (Dkt. Nos. 4, 15.) Petitioner challenges his 2006 conviction for second degree robbery. Petitioner was sentenced to 25 years to life in state prison. Petitioner raises three claims of alleged ineffective assistance of counsel in violation of the Sixth Amendment, and one claim of cumulative error. After careful review of the record, this court concludes the petition should be denied.
On June 7, 2006, a jury found petitioner guilty of second degree robbery. (1 Clerk's Transcript ("CT") at 241-42.) After petitioner waived his right to a jury trial on his prior convictions, the trial court found, in a bifurcated court trial, the allegations of petitioner's prior convictions to be true. (1 CT at 244-45.) Petitioner's prior convictions were a 1991 conviction for first degree burglary, a 1985 conviction for assault with a firearm, and a 1983 conviction for robbery, all within California's Three Strikes Law, and all serious felonies. (Id.; see also 1 CT at 39-40.)
On November 7, 2006, the trial court granted the prosecution's motion to strike the California Penal Code § 667(a) prior convictions. (2 CT at 309, 312.) Petitioner was then sentenced to a term of 25 years to life in state prison. (2 CT at 309, 313-14, 317.)
Petitioner filed a timely appeal on November 9, 2006. (2 CT at 319.) On November 13, 2007, the California Court of Appeal, Third Appellate District, affirmed the judgment, with the exception of the imposition of a surcharge and a correction of custody credits. (Respondent's Lodged Document ("LD") 3); see also People v. Young, 156 Cal.App.4th 1165 (2007) (judgment modified to provide for a 10 percent ($500) administrative surcharge, and to amend the abstract of judgment to reflect 326 actual days of custody credit). On November 27, 2007, the California Court of Appeal issued a modified opinion making minor changes to the opinion. (LD 4.)
On December 13, 2007, petitioner filed a petition for review in the California Supreme Court. (LD 5.) On February 20, 2008, the California Supreme Court denied the petition for review. (LD 5.)
It appears petitioner filed no petitions for writ of habeas corpus in any California state court.
On November 24, 2008, petitioner filed the instant petition.
On May 12, 2005, at approximately 2:00 a.m., Christina Lopez and Maria Valdez were working as cashiers at the USA gas station in Lodi. Two men entered the store, [petitioner] and his friend, Eli Hayes (whom he later identified as his co-defendant). Hayes approached Lopez at the cash register, pulled a gun and threatened to shoot her if she did not give him money. Lopez gave him money from her register. [Petitioner] went to Valdez, pulled a gun,[fn] and demanded she give him money. When Valdez could not open her register, [petitioner] raised his arm as though he was going to hit her. While Valdez was trying to open her cash register, she was also activating the alarm. Valdez realized [petitioner's] weapon was not real, because she could see the "point was crushed." Nonetheless, she was frightened and scared. After getting money from Lopez, Hayes and [petitioner] left the store and went their separate ways.
[fn] Petitioner actually used a plastic or "simulated" BB gun.
Responding to a dispatch, Lodi Police Officer Kevin Kent arrived at the USA gas station shortly after the robbery. He took statements from Lopez and Valdez, got general descriptions of the perpetrators and watched a video surveillance tape. He also later received still-frame photographs produced from another surveillance tape. [fn] Officer Kent did not see either Hayes or [petitioner] with a gun on the tape.
[fn] Apparently, there were two surveillance tapes, one taken by the in-store system and a second by an independent system. The still-frame photographs were taken from the independent surveillance system video.
Officer Dale Eubanks, who had known [petitioner] and his family for a number of years, saw the still-frame photographs and recognized one of the robbers as [petitioner]. About a week after the robbery, Eubanks was riding with Detective Nick Rafic when he saw [petitioner] in front of a local market. [Petitioner] was wearing clothes that were either the same or very similar to those depicted in the photographs from the robbery. Eubanks and Rafic pursued [petitioner], but he fled the scene and they were unable to find him.
Detective Rafic was assigned to follow up on the investigation of the case. As part of that investigative process, he procured a prior booking photo of [petitioner]. [fn] Using that photograph, he prepared a photo line-up. He showed the photo line-up to both Lopez and Valdez. Each identified [petitioner] as one of the robbers. However, Lopez expressed some uncertainty.
[fn] Regarding the prior booking photo, Detective Rafic offered the unsolicited clarification that "anybody who gets booked in the state, their photo becomes available to a police officer--for viewing for prior booking arrests."
Detective Rafic then learned [petitioner] was at Calaveras County Jail, so he went there to speak with [petitioner]. He told [petitioner] he was there investigating the robbery. [Petitioner] indicated he was aware of the robbery and, after being "Mirandized," gave Rafic a statement.
[Petitioner] stated he and Hayes had decided to rob the gas station. He made it clear to Hayes he did not want anyone to get hurt. He used a plastic or simulated BB gun, and Hayes had a knife. When Hayes got the money, they left the store and met up later at an abandoned house. In counting the proceeds, they had about $200. Hayes kept the money and would not share it with [petitioner]. But, Hayes used the money to buy food and drugs, which he shared with [petitioner]. [Petitioner] indicated he was sorry for his actions and particularly sorry he had frightened Lopez and Valdez. Despite his remorse, [petitioner] was not concerned about discussing the robbery, because he knew "he [could] plead insanity," and specifically used the phrase "5150." [fn] Detective Rafic explained this reference as "they use numbers based on some of these--you know, the mentally unstable." Rafic's interview with [petitioner] was not recorded in any way. Rafic acknowledged he was familiar with [petitioner] and knew him to be a drug user.
[fn] Presumably, this was a reference to Welfare and Institutions Code section 5150, which allows for a 72-hour involuntary commitment for those determined to be dangerous to themselves or others.
After the presentation of evidence, the jury was instructed. The instructions included the lesser included offenses of attempted robbery, petty theft and attempted petty theft. The instructions also included liability under an aiding and abetting theory. [fn]
[fn] Defense counsel's objection to the instructions on liability premised on an aiding and abetting theory was overruled.
Jury deliberations commenced on June 2, 2006. The next court day, the jury asked to see the surveillance tape and asked for a readback of Lopez's testimony. The next day, the jury sent a note stating it was deadlocked and had been since the previous morning. The foreperson indicated it was unclear whether "there's 100 percent understanding from everyone in the box how--from the lesser--how the lesser charges work with the robbery."
The court directed the jury back to the instructions and the foreperson indicated the instructions had been read "over and over and over" and were not especially helpful. The foreperson advised the court the problem appeared to be a disagreement on "the perception of the facts" and did not believe any additional time would be helpful in reaching a verdict. The rest of the jury agreed that neither further time nor instruction would be helpful. The court asked about the split on the last vote, and was advised it was "three numbers," "ten-to one-to one," indicating their level of disagreement. The court asked if further argument from the attorneys might be helpful. Although some of the jurors did not think it would be, others did. Accordingly, the court reopened closing argument for both parties. Neither party objected.
The prosecutor focused his second closing argument on liability under either a conspiracy theory or an aiding and abetting theory, theories which had been originally instructed upon but which he had not argued in his original closing argument. Defense counsel continued to focus his argument on the lesser included offenses.
The jury resumed deliberations. A short time later, it asked for a readback of defense counsel's second closing argument. Neither party objected. The court readvised the jury that statements and arguments of the attorneys are not evidence and defense counsel's argument was reread to the jury. The jury continued deliberations for over an hour, broke for lunch, reconvened, and then deliberated for another hour, at which time they had reached a verdict of guilty as to count 1 (§ 211).
IV. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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 ...