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Javier Frausto v. M.D. Biter

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


June 20, 2012

JAVIER FRAUSTO, PETITIONER,
v.
M.D. BITER, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on January 24, 2012. Respondent filed an Answer on April 18, 2012. Petitioner filed a Reply on May 21, 2012. On June 8, 2012, Petitioner filed "Petitioner's Request for the Court to Take Judicial Notice of Facts and Laws, etc."*fn1

BACKGROUND

A jury found Petitioner guilty of the premeditated first degree murder of Lynette Lucero and the premeditated attempted murders of Jimmy Sigala and Julio Castro (Reporter's Transcript ["R.T."] 3002-06; Clerk's Transcript ["C.T."] 401-06). The jury found true the allegations that, with respect to all of the offenses, Petitioner personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death within the meaning of California Penal Code section 12022.53(d), and personally and intentionally discharged a firearm, a handgun, within the meaning of California Penal Code section 12022.53(c) (R.T. 3002-06; C.T. 401-06). Petitioner received a sentence of 214 years to life plus three five-year enhancements (3312-13; C.T. 417-20.).

The Court of Appeal modified the sentence to include only one five-year enhancement and to recalculate custody credit, but otherwise affirmed the judgment (Respondent's Lodgment 5; see People v. Frausto, 180 Cal. App. 4th 890, 103 Cal. Rptr. 3d 231 (2009)). The California Supreme Court denied Petitioner's petition for review (Respondent's Lodgment 7).

Petitioner filed habeas corpus petitions in the Los Angeles County Superior Court, the California Court of Appeal and the California Supreme Court, all of which were denied summarily (see Respondent's Lodgments 8, 9, 10, 11, 12, 13).

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Frausto, 180 Cal. App. 4th 890, 103 Cal. Rptr. 3d 231 (2009). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).

[I]n July 2007, victims Lucero and Sigala were next door neighbors on Alice Street in the Cypress Park area of Los Angeles; victim Castro was Sigala's daughter's boyfriend; Castro's brother, Ernesto, lived around the corner. [Petitioner] lived about five blocks away.

On the night of July 4, 2007, Castro, Sigala, and Lucero were in front of Sigala's home watching fireworks. At about 1:00 a.m., Jim Guzman was walking through the alley behind Lucero's home toward a party when he saw [Petitioner] coming in his direction and carrying a gun wrapped in a T-shirt. Guzman knew [Petitioner], primarily through one of [Petitioner's] brothers. Shortly thereafter, Lucero was fatally shot, and Sigala and Castro were wounded. Guzman was still at the party a little while later and unaware of the shooting when he saw [Petitioner] arrive.

Two Los Angeles Police Department officers who were first on the scene of the shooting saw three gunshot victims: a male with a neck wound was seated in the front yard (Castro); another male with a stomach wound was lying in a fetal position in the yard of Sigala's house (Sigala); and a female was lying in the driveway (Lucero). Castro's brother, Ernesto, told one of the officers that Castro said the victims were "chitchatting" when [Petitioner] "started tripping" and "shooting."

At trial, Castro testified he never saw the shooter who approached from behind; Castro only remembered being shot, passing out and then waking up in the hospital emergency room. But prior to trial, Castro had told his two brothers and one of the prosecutors that [Petitioner] was the assailant.

Castro's other brother, Miguel, testified that his brother, Ernesto, told him that Castro had been shot by someone named "Frausto or something like that." Castro told Miguel that Sigala was shot first; Lucero, second; and Castro, last.

(Respondent's Lodgment 5, at pp. 3-4; see People v. Frausto, 180 Cal. App. 4th at 894-95).

PETITIONER'S CONTENTIONS

Petitioner contends that his appellate counsel rendered ineffective assistance, assertedly by:

(1) failing to challenge the trial court's denial of Petitioner's request to dismiss his trial attorney; and

(2) failing to challenge the sufficiency of the evidence.

STANDARD OF REVIEW

A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").

In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).

STANDARDS GOVERNING CLAIMS OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).

Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 130 S. Ct. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S. Ct. at 787 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).

A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 131 S. Ct. at 785. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788.

"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "'reasonably likely'" that the result would have been different. Id. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id.

The standards set forth in Strickland govern claims of ineffective assistance of appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001), cert. denied, 535 U.S. 995 (2002). Appellate counsel has no constitutional obligation to raise all non-frivolous issues on appeal. Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997). "A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court." Id.

Petitioner raised his claims of ineffective assistance of appellate counsel in his state court habeas petitions, which the state courts denied without reasoned decisions (see Respondent's Lodgments 8, 9, 10, 11, 12, 13). Therefore, this Court must determine "what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S. Ct. at 1403 (citation, quotations and brackets omitted).

DISCUSSION

I. Failure to Challenge Trial Court's Denial of Petitioner's Motion to Substitute Counsel

A. Background

Before trial, retained counsel represented Petitioner. On the date set for trial, Petitioner asked to speak to the court (Reporter's Transcript of Sealed Marsden Proceedings on August 6 and 7, 2008, attached as Exhibit to Petition ["R.T. August 6-7, 2008"] at 1).*fn2 Petitioner told the court that Petitioner repeatedly had asked his counsel to do certain things, and Petitioner requested that the court "encourage" counsel to comply with Petitioner's wishes (R.T. August 6-7, 2008, at 2-3, 6-7).*fn3 Petitioner's counsel stated a belief that some of the testimony Petitioner sought would not help Petitioner's case, and emphasized that counsel was "absolutely ready" to try the case (R.T. August 6-7 2008, at 4). The court said that the case was set for trial that day, and that the trial would proceed (R.T. August 6-7, 2008, at 9). The court observed that Petitioner had requested only that the court "encourage" counsel to do certain things, that counsel would make the decisions on how to proceed, and that the court had heard nothing indicating counsel's representation had been deficient (R.T. August 6-7, 2008, at 9). Petitioner responded: "Okay, your Honor." (R.T. August 6-7, 2008, at 9).

Jury selection began that afternoon (R.T. 55). The next morning, Petitioner told the judge Petitioner wanted to fire his lawyer (R.T. 304-05). After the judge cleared the courtroom, Petitioner alleged that his counsel had failed to locate witnesses, hire experts and subpoena documents (R.T. August 6-7, 2008, at 307). Petitioner requested the appointment of a new attorney (id.). The court indicated that the issue was the timeliness of the request, and called the prosecutor back into the courtroom (R.T. August 6-7, at 308).

The court told the prosecutor that Petitioner wished to discharge his lawyer but had not retained new counsel, and stated that if the court relieved Petitioner's counsel, Petitioner would have thirty days to obtain a new lawyer or else the court would appoint counsel for Petitioner (R.T. 311). The prosecutor said the situation was "very problematic" for the prosecution because of "significant witness issues" (R.T. 311). The prosecutor pointed out that on the previous day the court had been required to issue five body attachments for five prosecution witnesses (id.).

The prosecutor added that the prosecution had been unable to locate Julio Castro to testify at the preliminary hearing, that Castro had been "ducking service" and that he finally had been subpoenaed only the preceding week (R.T. 311, 316). The prosecutor said that Jim Guzman was homeless, had no address, had been difficult to serve, was under subpoena, and had been difficult to contact (R.T. 311, 315). The prosecutor said that Presciliana Juarez also had "dodged" testifying at the preliminary hearing, and had been "ducking" service of a subpoena, but finally was under subpoena (R.T. 311-12, 315). Ernesto Castro allegedly was uncooperative and the subject of a body attachment (R.T. 316-17). Guadalupe Sigala Juarez assertedly had been arrested on a body attachment after a failure to appear, and the court had ordered her back to court the day before (R.T. 315). According to the prosecutor, the prosecution had subpoenaed three witnesses from Modesto, California, and had arranged transportation and accommodation for these witnesses (R.T. 315).

Petitioner's counsel reiterated that he was ready to try the case, and was "very confident" in his ability to represent Petitioner, but stated there was a communication breakdown between counsel and Petitioner (R.T. 312). The court then asked the prosecutor to leave the courtroom so the court could discuss the alleged conflict between Petitioner and his counsel (R.T. 319-20). Petitioner's counsel explained that Petitioner wanted counsel to do certain things that counsel did not feel were appropriate or necessary, and that Petitioner was not communicating with counsel in a way that would assist the defense (R.T. August 6-7, at 321-22). Counsel stated that Petitioner had created a breakdown or barrier in the attorney-client relationship and that, although counsel did not agree, it might be best if counsel were relieved (R.T. August 6-7, at 323).

The court asked Petitioner why he was requesting new counsel that day, as opposed to the day before or the week before (R.T. August 6-7, at 323). Petitioner said he just wanted a fair trial (R.T. August 6-7, at 323-24). Petitioner said his mind "gets clogged" and sometimes he cannot "think right. . . ." (August 6-7, 2008, at 324). Petitioner said he needed to think things over and write things down (August 6-7, 2008, at 324). Petitioner also said he had no plans to hire a lawyer (August 6-7, 2008, at 324). The court explained that Petitioner could encounter the same alleged problems with a different lawyer (August 6-7, 2008, at 324). Petitioner said he understood, but was willing to take his chances because a new lawyer might do what Petitioner wanted (August 6-7, 2008, at 324-25).

The court denied as untimely Petitioner's request to relieve his retained counsel, ruling that substitution unreasonably would disrupt the orderly process of justice (R.T. 330). The court admonished Petitioner to "maintain propriety and conduct" (R.T. 330). Shortly thereafter, Petitioner's counsel told the court that Petitioner had threatened counsel (R.T. 332). Counsel said that Petitioner had told counsel that counsel had better do a good job "handling business" or Petitioner would bite counsel's ear off (Lodgment 8; R.T. August 6-7, 2008, at 334). Petitioner claimed he had been joking (id.). Counsel told the judge that he, counsel, did not feel comfortable with Petitioner and feared for counsel's safety and that of his family (id. at 334-35). The court decided to shackle Petitioner (id. at 338).

The court told Petitioner that if Petitioner misbehaved, he would be removed from the courtroom (R.T. 340). Petitioner denied threatening to bite his lawyer's ear off, and claimed that Petitioner had told his lawyer to "fight your rear off" (R.T. 340).

B. Discussion

A criminal defendant's Sixth Amendment right to counsel of choice is not absolute, but rather is "circumscribed in several important respects." Wheat v. United States, 486 U.S. 153, 159 (1988). The trial court retains "wide latitude" to balance the right to counsel of choice "against the needs of fairness [citation], and against the demands of its calendar." United States v. Gonzales-Lopez, 548 U.S. 140, 152 (2006). The court has an "independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Id. (citation omitted). In People v. Ortiz, 51 Cal. 3d 975, 275 Cal. Rptr. 191, 800 P.2d 547 (1990), the California Supreme Court held that a non-indigent criminal defendant has a qualified right to discharge retained counsel, with or without cause. Id. at 983. However, the California Supreme Court emphasized that a trial court retains discretion to deny a motion to discharge retained counsel where discharge of retained counsel is untimely or would result in significant prejudice to the defendant or disruption of the "orderly processes of justice." Id. (citations and internal quotations omitted); see also United States v. Gonzales-Lopez, 548 U.S. at 152.

Thus, a trial court does not violate the Sixth Amendment right to counsel of one's choice by denying a request to discharge retained counsel made on the day of trial, where new counsel has not been retained, a continuance would be necessary, and such a continuance could affect adversely the prosecution or witnesses. See Miller v. Blackletter, 525 F.3d 890, 896 (9th Cir. 2008), cert. denied, 555 U.S. 1107 (2009); People v. Turner, 7 Cal. App. 4th 913, 919, 9 Cal. Rptr. 2d 388 (1992) (request to discharge retained counsel made on the day set for trial was untimely and would cause significant disruption, because substitution would require a continuance and inconvenience to witnesses and other participants).

In the present case, Petitioner made his request to discharge counsel on the first day of trial, and lacked good cause for having delayed making the request until then. Petitioner had not hired any new counsel who could have been prepared to proceed with the scheduled trial. The appointment of new counsel would have taken time, as new counsel would have required additional time for trial preparation. Petitioner failed to give any assurance that he would not have similar problems with new counsel; he simply expressed a hope that new counsel would be more compliant with Petitioner's own vision of trial strategy.

The prosecution had experienced serious difficulties locating and subpoenaing witnesses, some of whom remained uncooperative. As of the first day of trial, however, the prosecution had managed to subpoena and obtain body attachments on necessary witnesses and was finally ready to proceed. The prosecution also had incurred the trouble and expense of locating, transporting and housing out-of-town witnesses. A continuance likely would have compelled the prosecution to duplicate efforts to locate, subpoena and transport witnesses. Given the evident unwillingness of a number of prosecution witnesses to testify, a continuance risked the loss of witness testimony through no fault of the prosecution, a result incompatible with the "orderly processes of justice." See Miller v. Blackletter, 525 F.3d at 896 (refusal to grant motion discharging retained counsel did not warrant habeas relief where petitioner sought to discharge counsel on the day of trial, prosecution witnesses were all present and ready to testify, petitioner had not obtained other counsel, and petitioner could not estimate how long new counsel would have needed to prepare for trial).

In such circumstances, Petitioner's appellate counsel reasonably could have determined that the trial court acted well within its discretion in denying Petitioner's day-of-trial request to replace retained counsel with appointed counsel. Hence, appellate counsel reasonably could have determined that any appellate challenge to the trial court's refusal to replace retained counsel with appointed counsel would have failed.*fn4 Counsel cannot be faulted for failing to make a meritless argument. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) ("the failure to take a futile action can never be deficient performance"); see also Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989) ("[T]he failure to raise a meritless legal argument does not constitute ineffective assistance of counsel"; citation and internal quotations omitted). For the same reasons, Petitioner has failed to show he suffered any prejudice as a result of the omission of this appellate challenge. See Moormann v. Ryan, 628 F.3d 1102, 1109 (9th Cir. 2010), cert. denied, 132 S. Ct. 346 (2011) (no prejudice where appellate counsel fails to raise on appeal a meritless argument for reversal of petitioner's conviction).

Therefore, the state courts' rejection of this claim of appellate counsel's alleged ineffectiveness was not contrary to or an unreasonable application of, any clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011); Harrington v. Richter, 131 S. Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on this claim.

II. Appellate Counsel's Failure to Challenge the Sufficiency of the Evidence

To succeed on a challenge to the sufficiency of the evidence, a defendant must show that, from the evidence presented at trial, no rational juror could find the essential elements of the crime beyond a reasonable doubt. See People v. Stewart, 33 Cal. 4th 425, 495, 15 Cal. Rptr. 3d 656, 93 P.3d 271 (2004). "In addressing a sufficiency-of-evidence challenge, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." People v. Roberts, 195 Cal. App. 4th 1106, 125 Cal. Rptr. 3d 810 (2011) (citations and internal quotations omitted). "In making this determination, [courts do] not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses." Id. (citations and internal quotations omitted).

Petitioner does not appear to contend appellate counsel should have challenged the sufficiency of the evidence to prove Petitioner was the shooter. In any event, the evidence showed that: (1) Julio Castro identified Petitioner to police as the shooter (R.T. 1896-97);*fn5 (2) Ernesto Castro told police that Julio Castro had identified Petitioner as the shooter (R.T. 1605, 1849, 1875-76);*fn6 and (3) Miguel Castro said that his brother Ernesto had told Miguel that someone named Frausto had shot Julio Castro, and that Julio told Miguel that Petitioner was the shooter (R.T. 1812, 1818, 1827, 1832-33). This evidence amply supported the conclusion that Petitioner was the shooter.

Petitioner appears to fault appellate counsel for failing to challenge the sufficiency of the evidence to prove intent to kill and premeditation and deliberation (see Petition, p. 17). With respect to the mental elements of the crimes, the prosecution's evidence showed the following: Jim Guzman testified that, shortly before the shooting, Guzman saw Petitioner carrying a gun wrapped in what appeared to be a t-shirt (R.T. 1227). Guzman, who knew Petitioner, said he saw the barrel of the gun protruding from the t-shirt (R.T. 1227-28). Guzman said Petitioner looked "numb" and did not respond or react when Guzman called Petitioner's name (R.T. 1228-29). Guzman testified that he and a companion walked to a nearby party (R.T. 1232).*fn7 No more than twenty minutes later, Guzman saw Petitioner walking back to the party (R.T. 1240). Guzman testified he saw Petitioner whisper something to Petitioner's brother Eddie, after which Eddie reportedly acted surprised and shocked, allegedly exclaiming "What the fuck" and "What the shit?" (R.T. 1242-43).

Sigala's granddaughter, Presciliana Juarez, testified that she was in her room when she heard three or four gunshots, and heard her grandfather yelling "What's wrong with you? What's going on?" (R.T. 1333-34). Sigala allegedly said "call 911 or I'm going to die" (R.T. 1334).*fn8 Sigala assertedly suffered a gunshot wound to the stomach (R.T. 1641).

Julio Castro testified at trial that he was standing by a wall near Lucero and Sigala when someone came up and shot Julio Castro in the back and then shot Sigala (R.T. 1342-44). The bullet passed through Castro's neck and hit his jaw (R.T. 1345-46).*fn9 Ernesto Castro told police that Julio Castro had told Ernesto that Julio and the others were "chitchatting" when Petitioner "started tripping" and shooting (R.T. 1876). The shooter reportedly shot Sigala first, then Lucero (R.T. 1816). The bullet apparently entered Lucero's body under her left arm and exited under her right arm (see 2430-31; R.T. 2719; Police recovered three 9 millimeter casings from the driveway and front lawn areas of the crime scene, suggesting the weapon was a semiautomatic handgun (R.T. 1880, 1884-85).

The act of firing toward a victim at close range in a manner that could inflict a mortal wound is sufficient to support an inference of intent to kill. See People v. Perez, 50 Cal. 4th 222, 230, 112 Cal. Rptr. 3d 310, 234 P.3d 557 (2010) (citations omitted).

In the context of first degree murder, "'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.'" (citation). "The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." (citations). "In [People v. Anderson (1968) 70 Cal. 2d 15, 73 Cal. Rptr. 550, 447 P.2d 942], we 'identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing.' (citation). However, these factors are not exclusive, nor are they invariably determinative. (citation)."

People v. Lee, 51 Cal. 4th 620, 636, 122 Cal. Rptr. 3d 117, 248 P.3d 651, cert. denied, 132 S. Ct. 340 (2011).

The evidence showed Petitioner fired three shots at fairly close range and hit three people, killing one outright with a shot through the torso, hitting one in the stomach and causing serious injuries requiring lengthy hospitalization and multiple surgeries, and hitting one in the back. The evidence that Petitioner brought a concealed, loaded weapon to the scene, approached three unsuspecting victims, and fired three times into the victims' vital areas, amply supported the jury's finding of intent to kill and premeditation and deliberation. See People v. Perez, 50 Cal. 4th at 230; People v. Lee, 51 Cal. 4th at 636 (bringing loaded handgun to scene of shooting showed premeditation and deliberation); People v. Romero, 44 Cal. 4th 386, 401, 79 Cal. Rptr. 3d 334, 349, 187 P.3d 56 (2008), cert. denied, 555 U.S. 1142 (2009) (victim shot in the back of the head without warning); People v. Stewart, 33 Cal. 4th at 495 (single execution-style shot fired at close range into victim's forehead in circumstances showing no evidence of a struggle "plainly" supported a finding of premeditation and deliberation); People v. Koontz, 27 Cal. 4th 1041, 1082, 119 Cal. Rptr. 2d 859, 46 P.3d 335 (2002), cert. denied, 537 U.S. 1117 (2003) (firing at a vital area at close range sufficient). Given this evidence, the arguable lack of any indication of motive did not foreclose a finding of premeditation and deliberation. See People v. Whisenhunt, 44 Cal. 4th 174, 202, 79 Cal. Rptr. 3d 125, 186 P.3d 496, cert. denied, 555 U.S. 1053 (2008) ("the lack of a discernable motive does not preclude a conviction for first degree premeditated murder"; citation omitted).

For the foregoing reasons, Petitioner's appellate counsel reasonably could have concluded that any challenge to the sufficiency of the evidence would fail. Counsel cannot be faulted for failing to make a meritless argument. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996); Shah v. United States, 878 F.2d at 1162. Furthermore, Petitioner has failed to demonstrate a reasonable probability that, had appellate counsel challenged the sufficiency of the evidence, the result of the appeal would have been different. See Moormann v. Ryan, 628 F.3d at 1109.

Therefore, the state courts' rejection of Petitioner's claim that appellate counsel ineffectively failed to challenge the sufficiency of the evidence was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011); Harrington v. Richter, 131 S. Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on this claim.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.


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