The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER (1) ADOPTING REPORT AND RECOMMENDATION; (2) ) DENYING PETITION; AND (3) ) DENYING CERTIFICATE OF APPEALABILITY
Petitioner Jose Alonzo Pina, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 ("Petition"). Petitioner was convicted of second degree murder under California Penal Code Section 187(a). (Lodgment 1 at 210 (Abstract of Judgment).) He claims his federal constitutional rights were violated because the evidence presented at trial was insufficient to support the conviction and the trial court improperly instructed the jury on aiding and abetting, reasonable doubt and circumstantial evidence.
The Petition was referred to United States Magistrate Judge Louisa S. Porter for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). The Magistrate Judge issued a Report and Recommendation, recommending the Petition be denied. Petitioner objected. Respondent did not file a response. For the reasons which follow, Petitioner's objections are overruled, the Report and Recommendation is adopted, and the Petition is DENIED.
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).
First, Petitioner objects to the recommendation insofar as it found that the state court decision on the insufficiency of the evidence claim was not unreasonable. Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), federal courts apply a deferential standard of review of state court decisions. The question presented by the Petition under AEDPA, 28 U.S.C. § 2254(d)(1), is whether the state court determination "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." See Juan H. v. Allen, 408 F.3d 1262, 1275 (9th Cir. 2005).
"As a matter of federal constitutional law, 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." Juan H., 408 F.3d at 1274. The clearly established federal law on this issue is Jackson v. Virginia, 443 U.S. 307, 319 (1979), under which "the relevant question is 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." Under AEDPA, the standard established in Jackson is applied with an additional layer of deference to the state court rulings. Juan H., 408 F.3d at 1274. Accordingly, "[c]ases of constitutional insufficiency of evidence where the writ must issue even after consideration of the double level of deference will necessarily be rare, confined to extraordinary cases." Smith v. Mitchell, 624 F.3d 1235, 1239 (9th Cir. 2010).
The evidence is discussed in detail in the opinion of the California Court of Appeal, People v. Pina, 2008 WL 755067 (Cal. App. 4th Dist. 2008), and is only briefly summarized herein. Petitioner and the victim Jose Cardona, Sr. lived with Petitioner's mother, who was Mr. Cardona's girlfriend. On the morning of the crime, Petitioner was in an argument with Mr. Cardona's son Jose*fn1 because Jose bumped into Petitioner. Later Mr. Cardona and Petitioner's mother joined the argument as well. Apparently arguments between Mr. Cardona and Petitioner's mother were not uncommon and, although they were loud, they were not violent. Petitioner and his mother were yelling at Mr. Cardona and Jose to move out. Petitioner's mother told Mr. Cardona that he would leave "one way or another." Petitioner's brother Alfredo*fn2 was called from work to assist his mother and Petitioner in trying to get Mr. Cardona and Jose to leave. After Alfredo was not successful in convincing Mr. Cardona, he left, but said he would be back. Mr. Cardona then advised Jose to stay with a friend until things quieted down. As Jose was leaving, Petitioner told him he would not be surprised to see Mr. Cardona on the 8 o'clock news. After Jose left, Mr. Cardona also left to visit two neighbors. He told them he had an argument with Petitioner's family, that they were giving him a bad time, and that Alfredo went to get his "buddies."
Later in the day witnesses heard gunshots. A next-door neighbor went to investigate and found Mr. Cardona moaning on the ground in the alley behind the property where Petitioner lived. Shortly thereafter, Mr. Cardona died from three shotgun wounds. He had also suffered two stab wounds and abrasions.
The only person who saw the murder was Jose Martinez, who was four or five houses down the alley. After he heard a shot, he saw a man standing near a van, pointing a shotgun at another man. The van was parked immediately behind Petitioner's back yard with its passenger side facing a gate leading from the yard to the alley. The shooter reloaded the gun and shot again twice. When Mr. Martinez looked, the victim was on the ground. The shooter then went to the driver's side of the van and the victim tried to get up and move. At that time a second assailant came from the passenger side of the van and punched and kicked the victim. Although Mr. Martinez did not see it, it was later determined that the second assailant had stabbed the victim. The shooter then called to the second assailant to get into the van and they drove off.
Mr. Martinez could not positively identify the shooter or the second assailant, and gave only very general descriptions. He "was able to describe the shooter as a Mexican man about five feet, eight inches to five feet, ten inches tall, 180 to 200 pounds in weight with a stocky build, bald or with very short hair, 'rough shaven,' and wearing black pants and a brown flannel shirt. The second assailant was also a Mexican man, again five feet, eight inches to five feet, ten inches tall but lighter in weight, 160 to 180 pounds, clean shaven, with short hair, wearing a white shirt and dark pants with lighter skin and hair a little longer than the shooter's. [¶] When shown [Petitioner's] picture . . . taken at the time of his arrest . . . , [Mr.] Martinez stated [Petitioner] looked similar to the second assailant with regard to his facial characteristics, skin color, height and weight." Pina, 2008 WL 755067 at *2.
Alfredo was later found to be the shooter in the crime. Petitioner was
convicted of second degree murder on the theory that he aided and
abetted Alfredo as the second assailant who stabbed and kicked Mr.
Cardona after Alfredo had shot him. Pina, 2008 WL 755067 at
8. To prevail on this theory, the prosecution had to prove beyond a
reasonable doubt that Petitioner was the second assailant.*fn3
He argues that the evidence was constitutionally insufficient
because there was no physical evidence, weapons were not recovered,
there were no fingerprints, DNA evidence or positive identification
linking him to the crime, and the circumstantial evidence against him
In determining whether the state court determination involved an unreasonable application of clearly established federal law, the federal habeas court looks to the last reasoned opinion of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991). Here it is the California Court of Appeal opinion on review of Petitioner's conviction. Pina, 2008 WL 755067.
The state court, applying a legal standard equivalent to Jackson, reviewed the evidence presented at trial in the light most favorable to the prosecution. See Pina, 2008 WL 755067 at *3. The court analyzed the events of the morning, including that Petitioner actively participated in the argument, that Alfredo was called home from work to support Petitioner and his mother in their argument with Mr. Cardona, Petitioner's statement to Mr. Cardona's son not to be surprised if Mr. Cardona appeared on the 8 o'clock news, and Mr. Cardona's statement to a next-door neighbor after the argument that Alfredo went to get his "buddies." It based its conclusion in part on the strong evidence that Alfredo was the shooter. The evidence against Alfredo was that he left after the argument, but returned with a shot gun, and shot Mr. Cardona three times at close range. In his objections, Petitioner does not dispute that the evidence against Alfredo was strong. State court also analyzed the second assailant's participation in the murder, noting that Mr. Martinez did not testify that the second assailant came out of the van, but only from the passenger's side of the van, which was next to the gate to the back yard where Petitioner lived, that the second assailant did not appear until after the shooting, and that the cold-blooded nature of the second assailant's attack supported a reasonable inference that he was not the shooter's disinterested helper, but "someone caught up in the emotional context of the murder." Id. at *4. The court acknowledged that Mr. Martinez could not positively identify the second assailant, but said that Petitioner "looked similar" to the second assailant. Id. at *4. Based on the foregoing, the court concluded that the evidence was sufficient to convict Petitioner of second degree murder on the theory that he was the second assailant. Id. at *5.
In his objections Petitioner points to various pieces of evidence and argues as to each separately that it was insufficient to show guilt beyond a reasonable doubt. This approach is unavailing because the determination on sufficiency of the evidence is made based on review of all of the evidence admitted at trial. See, e.g., McDaniel v. Brown, __ U.S. __, 130 S.Ct. 665, 672, 675 (2010); Schlup v. Delo, 513 U.S. 298, 330 (1995). That "in all essential aspects" the evidence against Petitioner was circumstantial, Pina, 2008 WL 755067 at *10, was not fatal to the prosecution's case. Circumstantial evidence can be constitutionally sufficient to support a conviction. Ngo v. Giurbino, __ F.3d __ 2011 WL 2675808 at *2 (9th Cir. 2011); United Statesv. Cordova Barajas, 360 F.3d 1037, 1041 (9th Cir. 2004 ("circumstantial evidence alone can be sufficient to demonstrate a defendant's guilt"). This is so even when circumstantial evidence can give rise to reasonable inferences to the contrary. Payne v. Borg, 982 F.2d 335, 341 (9th Cir. 1992).
Petitioner argues that the domestic argument on the morning of the murder was not violent, was common for the household, and therefore could not be used to support the conviction. This argument is unavailing because the state court assumed the argument was not violent. See Pina, 2008 WL 755067 at *1, 2, 3 & 4. It noted, however, that Petitioner was involved in an argument with the victim on the morning of the murder.
Petitioner also contests the credibility of the testimony he made the statement that it would not be surprising if Mr. Cardona appeared on the 8 o'clock news. Under Jackson the court must review the evidence "in the light most favorable to the prosecution." 443 U.S. at 319. This means that a reviewing court must presume that the jury resolved conflicts in the evidence and credibility issues in favor of the prosecution, even if this does not affirmatively appear in the record. Id. at 326; see also McDaniel, 130 S.Ct. at 673. Petitioner's argument is rejected because this court presumes, as it must, that the jury believed the testimony that Petitioner made the statement.
Moreover, the evidence is undisputed that someone said this to Jose just after the argument. (See Lodgment 2, Reporter's Transcript ("RT") at 846-47.) This, together with Mr. Cardona's instruction to Jose to visit a friend, and his comment to a neighbor that Alfredo went to get his "buddies," supports a reasonable inference that although the yelling ended, the animosity did not, and that ...