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Mardoqueo Guevara v. Maurice Junious

May 8, 2012

MARDOQUEO GUEVARA,
PETITIONER,
v.
MAURICE JUNIOUS, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER DENYING PETITION WITH PREJUDICE

I. INTRODUCTION

Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging that: 1) his sentence is unconstitutional because he received concurrent sentences for multiple convictions arising out of a single act; 2) there was insufficient evidence to support his conviction of attempted extortion in Count 10; and 3) his sentence of 17 years to life for attempting to extort $25 constitutes cruel and unusual punishment. For the following reasons, the Court finds that the state courts did not err in rejecting these claims.

II. STATEMENT OF FACTS

The following statement of facts, including the footnotes, was taken verbatim from the California Court of Appeal's decision affirming Petitioner's convictions and sentence on direct appeal:

This case arises from repeated encounters in or about December 2006 through March 2007 between [Petitioner], an admitted gang member, and the victim Rafael Merida, a street vendor.*fn1

[Petitioner] was charged by information with committing extortion (count 1), second degree robbery (count 2), and attempted extortion (counts 8, 9, 10) against Merida.*fn2

[Petitioner] was also charged with carrying a loaded, unregistered firearm (count 6). Gang enhancements were alleged as to counts 1, 2, 6, 8, 9 and 10, and firearm-use enhancements were alleged as to counts 1 and 2. The information further specifically alleged as to counts 1, 2 and 6 that [Petitioner] had previously served a separate prison term for a felony under Penal Code section 667.5, subdivision (b).

According to the three counts at issue, [Petitioner] committed attempted extortion on the following occasions: On or between December 1, 2006 and January 31, 2007 (count 8); on or between February 1, 2007 and February 29, 2007 (count 9); and on or about March 26, 2007 (count 10).

The pertinent evidence presented at trial established Merida operated a taco stand outside a liquor store at a Van Nuys intersection. Early in 2007, [Petitioner], accompanied by several other men, told Merida he was working in a territory controlled by the Mara Salvatrucha (M.S.) gang, and he would have to pay $25 in protection money or risk being killed or having his taco stand burned down by [Petitioner] and his companions. Merida was frightened, but he told [Petitioner] the taco stand did not belong to him. Merida did not pay the protection money; [Petitioner] and his companions left. (Count 8.)

In February 2007, [Petitioner] returned with several companions again and demanded the protection money, because another taco vendor was paying it. [Petitioner] also reminded Merida he already knew what would befall him if he refused to make payment. This time, Merida said the taco stand belonged to the liquor store. [Petitioner] and his companions left, again without collecting $25 from Merida. (Count 9.)

On Monday, March 26, 2007, [Petitioner] and his companions came back a third time. [Petitioner] told Merida he would have to start paying the protection money by Friday [March 30, 2007] and "this was the last time they were letting [Merida] know."

Merida testified [Petitioner] always brought a handgun with him at every encounter.

Right after his third encounter with [Petitioner], Merida contacted police, who gave Merida a microphone to wear for his anticipated meeting with [Petitioner] on Friday, March 30, 2007. Officers agreed to conduct audio and video surveillance from a van parked near the intersection of Merida's taco stand.*fn3 [Petitioner] arrived with his companions that evening, told Merida he was there for the protection money and asked if the two of them had a deal. [Petitioner] said no one would bother Merida if he made the $25 payment. Merida saw a handgun in [Petitioner]'s pocket. At one point, [Petitioner] produced the gun, yelled to a passing vehicle that it was in M.S. territory ...


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