May 20, 2013
MARQUIS DeJON JILES, Petitioner,
R.T.C. GROUNDS, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable S. James Otero, 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.
On November 15, 2012, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody, " including attachments ("Pet. Att."). Respondent filed an Answer on April 11, 2013. Petitioner did not file a Reply within the allotted time.
A jury found Petitioner guilty of one count of second degree murder and two counts of attempted second degree murder (Reporter's Transcript ["R.T."] 3308-12; Clerk's Transcript ["C.T."] 461, 464, 466, 487-89). The jury also found true the allegations that Petitioner used a deadly and dangerous weapon (an automobile) in connection with each of the convicted counts, and personally inflicted great bodily injury upon Walter Hobson, within the meaning of California Penal Code sections 12022(b)(1) and 12022.7(a) (R.T. 3309-10; C.T. 461, 464, 466). The trial court sentenced Petitioner to a prison term of 28 years and four months to life (R.T. 3620-21; C.T. 487).
The Court of Appeal affirmed the judgment in a reasoned decision (Respondent's Lodgment 6). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 8).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Jiles, 2011 WL 4036157 (Cal.App. Sept. 13, 2011). See Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
A. Prosecution Case
Rose Falcone lived with her boyfriend Kyle Anderson and his two brothers in Los Angeles. On April 19, 2008, there was a party at the Anderson house to celebrate Anderson's birthday. Falcone hired Angela Veliz, a childhood friend, to bartend the party. Veliz brought her boyfriend Maurice, [Petitioner] (Maurice's brother) and two other friends with her to the party.
When Anderson introduced himself to one of Veliz's friends, the friend said he was from a gang. Anderson asked Falcone to tell Veliz that her friends had to leave. The men left. Maurice, [Petitioner] and another friend returned to the party 30 minutes later. Maurice told Anderson that they had dropped off the friend who was causing the problem. Anderson allowed them to stay.
Walter Hobson arrived at the party at approximately 9:30 p.m. Hobson flirted with Veliz; he did not know she had a boyfriend. Maurice and [Petitioner] "caught wind" of the flirting; Hobson saw them talking to Veliz behind the bar, gesturing as if they were upset. Hobson told Anderson that [Petitioner] and Maurice appeared upset. Anderson and his friend Jay Roy went to check on things. Anderson and Roy approached [Petitioner] and Maurice and overheard them say they were going to beat up someone. Anderson told [Petitioner] and Maurice to leave. "There was some resistance" and swearing, and [Petitioner] said, "If this were the streets, it would be different.'" When Anderson asked what [Petitioner] meant, [Petitioner] said, "Well, if we were at a different party or different place, then we would be asking you to leave.'" Anderson took the statements to be threats.
During the exchange, Maurice appeared agitated and was yelling and gesturing with his arms. Hobson saw [Petitioner] and Maurice gesturing while talking to Anderson. Hobson walked over and said, "Look, this is my home boy's party. You guys need to, you know, either chill out or leave.'" Maurice started walking towards Hobson and said, "Fuck you. You don't know where I'm from. You don't know me.'" Anderson punched Maurice in the face. Roy pulled Anderson off of Maurice. Veliz, Maurice, [Petitioner] and their friend were thrown out of the party.
Falcone and four male friends, including Johnny Martinez, escorted Veliz's group from the backyard to the front of the house and saw them get into Veliz's car, a blue Scion that was parked down the street from the Anderson house. [Petitioner] and Maurice suddenly jumped out the car and told Falcone they wanted to talk to Anderson. When Falcone told them it was not a good idea, they demanded to see Anderson. Falcone told [Petitioner] and Maurice to come back the next day to talk it out and went back to the party. At some point, [Petitioner] swung at Martinez. Although Martinez did not feel [Petitioner] make contact with his face, a wound just below his left eye started bleeding.
Shortly thereafter, someone told Roy, Hobson and Anderson that [Petitioner] and his friends were refusing to leave and had "cut Johnny in the face.'" Roy, Hobson, Anderson, and most of the party attendees, including Maziar "Mozzy" Tehrani, ran to the front of the house. It was chaotic outside; everyone was yelling. Maurice was screaming Anderson's name while "jumping up and down and throwing his hands up." Anderson ran towards Maurice, and they started fighting. Several people joined in beating on Maurice, but Hobson pulled them off so they could fight one-on-one. During the fight, Hobson saw [Petitioner] approach Anderson from behind. It looked like [Petitioner] was going to stab Anderson and had something in his hand. Before [Petitioner] reached Anderson, Hobson cut him off. [Petitioner] made jabbing motions towards Hobson. Hobson stood his ground. [Petitioner] backed off and walked away.
While the fight was going on, Veliz moved her car so it was parked next to the fight. Falcone told Veliz to get her boyfriend "out of there." Veliz jumped out of her car, leaving the ignition on and her car door open, and broke up the fight.
[Petitioner] ran around Hobson and got into the driver's seat of Veliz's car. Roy heard [Petitioner] say, "You should have never fucked with the niggas, '" before driving down the street away from the crowd. [Petitioner] made a U-turn and drove back towards the party. [Petitioner] looked "very angry" and was holding onto the steering wheel so tightly that his knuckles looked white. [Petitioner] revved the engine and maneuvered the car into the "oncoming traffic lane" towards the crowd of people outside of the party. Roy screamed out to Hobson that the car was coming. When Hobson turned around, he saw a car on the other side of the street turn towards him, heard the engine rev and saw headlights coming directly at him.
Hobson tried to dive out of the way, but the car "clipped" his left leg. Hobson flew up into the air and landed face-first on the concrete. Hobson had "road rash" across his face, hands and knees. Hobson sustained ligament damage in his face, knee and right shoulder.
Veliz, who was standing near Hobson, also tried to jump out of the way of the oncoming car. Veliz was hit in the hip. Tehrani, who was standing between Veliz and Hobson, could not get out of the path of the car. When [Petitioner] hit Tehrani, Tehrani's body "folded into the car, " his head hit the windshield, and his body flew into the air about 15 or 20 feet. Tehrani "landed on the ground, skidded across the asphalt and slammed against the curb." Tehrani died as a result of cranial cerebral trauma.
The car came to a stop on the front lawn of a neighbor. [Petitioner] jumped out of the car, looked around and said, "That's what you motherfuckers get for fucking with me.'" Maurice and [Petitioner] ran from the scene.
B. Defense Case
Veliz testified. [Petitioner] assisted Veliz tend bar by dispensing beer. At some point, Falcone asked Veliz why she had brought Shorty (Veliz's cousin) to the party. Maurice took Shorty home, and [Petitioner] remained at the party. [Petitioner] told Veliz that he felt uncomfortable - he detected other guests and Anderson were giving him funny looks. Maurice returned about 40 minutes later. [Petitioner] told Maurice of his discomfort.
Anderson approached the bar and asked Maurice and [Petitioner] if everything was okay. Maurice said they were good and wished Anderson a happy birthday. Anderson seemed to press the issue of whether everything was okay. Hobson said Anderson was his friend and "homey" and he had Anderson's back. Suddenly, Anderson punched Maurice causing Maurice to fly into the bar and onto the floor. Veliz said they had to leave. When Falcone approached and asked what was going on, Veliz said they were leaving because Anderson had struck Maurice.
Maurice, [Petitioner] and their friend were waiting at Veliz's car. When Veliz and [Petitioner] tried to put Maurice into the car, he kept calling out for Anderson. Maurice was intoxicated; he gets loud when he drinks too much. Anderson approached, which prompted Maurice to break loose, run toward him and fight. Veliz drove toward the two. Maurice was on the ground in a fetal position being punched and kicked by Anderson and at least four others. Veliz jumped out of the car and ran to help Maurice. As Veliz picked Maurice off the ground, she heard her car take off, an engine sound and then she saw headlights coming toward her as the car veered to its left. Veliz tried to jump from the path of the car in the middle of the street, but was struck on her right leg by the passenger side of the car.
After getting off the ground, Veliz went to the car, which had stopped on the front yard of a neighbor's house. Opening the door, Veliz saw [Petitioner] in the driver's seat looking startled. [Petitioner's] eyes were tracking side to side and he did not seem to know where he was. Veliz told [Petitioner] to leave, which he did. During the entire evening, [Petitioner] was never the aggressor and had even tried to help Veliz cool things down.
Maurice testified that after driving Shorty home, he returned to the party where [Petitioner] told him that "we need to get out of here.'" At that point, Anderson told Maurice and [Petitioner], "You mother fuckers gotta go.'" and "You're fucking up my party. I don't even know you fuckers.'" Maurice turned to Veliz and said they had to go; when he turned back, Anderson punched him in the mouth. Maurice and his group left the party. As Maurice went to the car, he saw Anderson behind him; the two men then fought as other guests gathered around. Someone from the crowd started punching Maurice in the back of the head. While on the ground being repeatedly struck and kicked, Maurice heard Anderson and others say, "Beat this nigger's ass. Beat this nigger's ass.'" During this time, [Petitioner] was in the street fighting with two or more other men. The beating stopped when Veliz interceded. As Maurice ran, he heard a boom sound and voices chasing him saying, "Get this nigger. They killed my home boy."
[Petitioner] testified he arrived at the party around 10:30 p.m. and assisted Veliz pass out beer. When Shorty became intoxicated and started saying things he should not have said, Anderson confronted Shorty and asked where he was from. Shorty responded, "a prison gang." Veliz told Maurice and [Petitioner] to take Shorty home, which Maurice did. Meanwhile, [Petitioner] was becoming anxious about the looks he was receiving from Anderson and his friends; [Petitioner] felt unwelcome and asked Veliz to leave.
Maurice returned, and they all agreed to leave after Veliz finished bartending. Maurice became agitated, and Anderson approached with some other guys and said, "What the fuck! Are you trying to cause any problems here in at my house?'" [Petitioner] answered no. Maurice butted in and exchanged words with Anderson, then Anderson punched Maurice in the face. [Petitioner] ran out from the party with Maurice trailing behind; they met up with Veliz at her car. Veliz and [Petitioner] tried to calm Maurice and get him into the car. [Petitioner] then noticed Anderson and about 15 others from the party approaching. [Petitioner] told Anderson they did not want any problems and were "cool, " but Maurice challenged Anderson, and Anderson responded by punching Maurice. [Petitioner] tried to intercede but was taken out by five or six others and injured in the process. Neither Hobson nor Roy were involved. [Petitioner] tried to punch back and pulled out a knife to ward off his attackers.
As [Petitioner] attempted to back away, Hobson asked, "Where the fuck are you going?'" Yelling out for Veliz and Maurice to follow, [Petitioner], now being pursued by Hobson, ran toward Veliz's car. The engine was running, the lights were on, and [Petitioner] got into the car and drove off in a panic. [Petitioner] made a U-turn at the intersection to come back for Veliz and Maurice, whom [Petitioner] believed were standing close to the curb near Anderson's house. Finding himself in the wrong lane, [Petitioner] drove toward the curb on the opposite traffic lane; he might have hit the accelerator harder than he should. [Petitioner] reached to the floor board and then the back seat in search of his knife. When [Petitioner] sat upright, he accidentally hit the accelerator; it was too late to avoid striking the person who hit the windshield.
By the time [Petitioner] regained control of the car, it was veering toward the house; he attempted to hit the brakes. Stunned and shocked, and hearing screaming and something about "I'm going to fucking kill you, '" [Petitioner] found his knife between the seat and the door. Veliz, who was standing right there, told [Petitioner] to run. [Petitioner] was found and arrested shortly thereafter and taken to the hospital for his injuries. [Petitioner] acknowledged initially lying to police about not driving the car, but then he admitted he had. [Petitioner] said hitting the people was an accident. [Petitioner] denied intentionally hitting any of the victims.
(Respondent's Lodgment 6, pp. 2-7; see People v. Jiles, 2011 WL 4036157, at *1-4).
1. The prosecutor allegedly committed misconduct in closing argument by assertedly: (a) impugning defense counsel; and (b) misstating the law of concurrent intent (Ground One);
2. Petitioner's trial counsel allegedly rendered ineffective assistance by failing to object to the prosecutor's asserted misconduct (Ground Two); and
3. The evidence allegedly was insufficient to support the attempted murder conviction with respect to victim Angela Veliz (Ground Three).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), 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 S.Ct. 38, 44 (2011); Lockyer v. Andrade , 538 U.S. 63, 71-72 (2003). 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, 190 (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 on the claim or claims presented, here the decision of the California Court of Appeal. See Delgadillo v. Woodford , 527 F.3d 919, 925 (9th Cir. 2008). "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Harrington v. Richter , 131 S.Ct. at 784. If the state courts did not decide a federal constitutional issue on the merits, this Court must consider that issue under a de novo standard of review. See Lewis v. Mayle , 391 F.3d 989, 996 (9th Cir. 2004); see also Porter v. McCollum , 558 U.S. 30, 39 (2009) (reviewing claim of ineffective assistance of counsel de novo where state court did not decide whether petitioner's counsel was deficient).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey , 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
For the reasons discussed below, the Petitioner should be denied and dismissed with prejudice.
I. Petitioner's Claim of Prosecutorial Misconduct Does Not Merit Habeas Relief.
Petitioner contends that the prosecutor committed misconduct by assertedly: (1) impugning defense counsel by suggesting counsel called a witness to lie to the jury; and (2) misstating the law governing concurrent intent to kill within a "kill zone" (Petition, Ground One; Pet. Att. A).
Petitioner's friend Angela Veliz gave the following testimony in Petitioner's defense:
Veliz was Rose Falcone's best friend and former roommate, and the former girlfriend of Petitioner's brother (R.T. 2117, 2170-72, 2190). Veliz attended Kyle Anderson's party and later, in front of Kyle's house, broke up a fight between her boyfriend (Maurice), on the one hand, and Kyle and a group of guys, on the other hand (R.T. 2118-20, 2126-28, 2134-44). Veliz was pushing Maurice toward the street where her car was parked so that she and her companions (Maurice, Petitioner, and someone called "White Boy") could leave Kyle's party (R.T. 2128-29, 2143-44). Veliz was mad and frustrated that Maurice did not get in her car earlier, when she tried to get Maurice to leave after an altercation between Maurice and Kyle in Kyle's back yard (R.T. 2142-43).
Veliz saw her car "take off" as she pushed Maurice, and then heard the car's engine coming from behind (R.T. 2144). Veliz turned and saw headlights approximately 14 feet away, moving straight toward her (R.T. 2144-45, 2161). Veliz tried to jump out of the way of the car (R.T. 2144, 2146). At that time, she and Maurice were in the middle of an intersection (R.T. 2144). The car struck Veliz's right leg, and she rolled onto the car (R.T. 2146-47).
Veliz recovered from the impact and walked to where her car had stopped (R.T. 2149). She opened the driver's door and saw Petitioner in the driver's seat (R.T. 2149). Veliz said Petitioner looked "startled" or "shocked, " with his eyes "really big" and "looking side to side" (R.T. 2149-50). Veliz said Petitioner "didn't look like he knew where he was" (R.T. 2149). Veliz saw Kyle walking in her direction so she told Petitioner to leave (R.T. 2150, 2180-81).
On cross examination, Veliz admitted that in a written statement she provided to the police shortly after the incident, she said that it was Petitioner and Maurice who were exchanging words and not getting in the car to leave, not just Maurice (R.T. 2157-58, 2165-66, 2179-80). Veliz told police she had intended to drive off without Petitioner and Maurice (R.T. 2158, 2179). Veliz also told police that, after she was hit by her car, she "ran to [her] car to see who was driving it... and at that point, no one was in the car and the door was wide open" (R.T. 2159, 2166, 2180). Veliz told police she did not know who had driven her car (R.T. 2159).
Veliz also admitted that when she testified at the preliminary hearing she never mentioned that she supposedly knew who was driving (R.T. 2159-60, 2169). She also never said that she saw Petitioner with a surprised look on his face (R.T. 2169). In a videotaped interview with police that was played for the jury, Veliz told police that she "didn't see anybody get out of [her] car" (R.T. 2167-68, 2187). When the prosecutor interviewed Veliz two months before trial, Veliz repeated to the prosecutor that Veliz did not know who had driven the car (R.T. 2185-86). At trial, she admitted that the first time she made any mention of Petitioner driving the car and having a surprised look on his face was at trial (R.T. 2170-71). Veliz said she knew of no reason why Petitioner would hit her with a car and claimed that Petitioner had been acting as a peacemaker that evening (R.T. 2183-84).
In her closing argument, the prosecutor discussed the elements of attempted murder as including a "specific intent to kill unlawfully another human being" (R.T. 2721). The prosecutor argued:
[Petitioner's] [c]ounsel makes a big deal about the fact that [Petitioner] would have no reason to want to kill Angela Veliz but... there is something called a "concurrent intent to kill" under the law. And... under the law of concurrent intent to kill, the intent to kill element is satisfied as to Angela Veliz.
So what is a "concurrent intent to kill"? It's defined as follows: A person who primarily intends to kill may also concurrently intend to kill other persons within a particular zone of risk. That is called a "kill zone." What does that mean in layman's terms? Basically means if a person has intent to kill someone within a kill zone, then he has the concurrent intent to kill everyone within that zone.
Let me give you an example. Joe's a gang member. Joe has a loaded gun. Across the street he knows a rival gang member. That rival gang member is surrounded by a crowd of bystanders.
So what does Joe decide to do? Joe wants to kill that rival gang member. He pulls that loaded gun outside of his pocket, and he shoots and he aims, and he fires a couple of rounds into that crowd of people aiming for that rival gang member. As a result, multiple people are hit. Many of the innocent bystanders are hit, and it just so happens one of those innocent bystanders happens to be Joe's own brother.
... [U]nder the law, that's a concurrent intent because Joe had the specific intent to kill that rival gang member. He now has the concurrent intent to kill all of those innocent bystanders he just shot, including his own brother.
So what do we have? We know that in this case [Petitioner] had that specific intent to kill Walter. And as [Petitioner] had that specific intent and was going for Walter and aimed that car at Walter, that Angela Veliz was also hit. And because [Petitioner] had that intent to kill Walter, he now has the concurrent intent to hit Angela along with everybody else who was in that zone because that... is the kill zone.
In his closing argument, Petitioner's counsel suggested that Petitioner had no motive to kill Veliz, and continued to maintain that the evidence did not support any theory of intent (R.T. 2753-58, 3002-08).
After deliberations began, the jury asked for "clarification of attempted murder of the second degree, " by which, the foreperson explained, the jury meant the definition of attempted second degree murder (i.e., murder without premeditation) versus attempted murder with premeditation and deliberation (R.T. 3040-41; C.T. 326). The trial court allowed counsel five minutes of additional argument to explain, and later referred the jury to an instruction in their packet (R.T. 3041-48, 3301-06; C.T. 326 (referring the jury to C.T. 388 (attempted murder instruction)).
The prosecutor began the additional argument by telling the jury that the difference between degrees of attempted murder is whether there was premeditation and deliberation (R.T. 3041). The prosecutor assailed the reliability of Petitioner's defense, commenting:
How else do we know that the defense's argument of it being an accident is unreasonable? The testimony of Angela Veliz. Why do you think defense counsel brought Angela Veliz in? To lie on their behalf? Because they needed her to come in and tell you that at the time of the incident, she ran up to [Petitioner], and she saw him behind that driver's seat and that he had a surprised look on his face. Remember, that's the one fact that Angie suddenly remembers after two years.
* * *
Ladies and Gentleman, that is why the defense is calling Angie, because they needed Angie to come in and lie for the defense, to negate the important piece of evidence that was testified to by Tony Sayegh and Rose Falcone.
Petitioner's counsel focused his additional argument primarily on the question that had been posed by the jury (R.T. 3045-47). Counsel discussed the range of jury instructions, from first degree murder and attempted first degree murder, down through involuntary manslaughter (id.).
As Petitioner acknowledges, prosecutorial misconduct merits habeas relief only where the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright , 477 U.S. 168, 181 (1986) (citation omitted) ("Darden"); Bonin v. Calderon , 59 F.3d 815, 843 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996) ("To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of [the petitioner's] right to a fair trial."). The Court must consider the entire proceeding to determine whether the alleged misconduct rendered the trial so unfair as to violate due process. See Sechrest v. Ignacio , 549 F.3d 789, 807-08 (9th Cir. 2008), cert. denied, 558 U.S. 938 (2009).
On habeas review, a federal court will not disturb a conviction unless the alleged prosecutorial misconduct had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson , 507 U.S. 619, 637-38 (1993) (citation and internal quotations omitted); Burks v. Borg , 27 F.3d 1424, 1431 (9th Cir. 1994), cert. denied, 513 U.S. 1095 , 1160 (1995) (Brecht standard applies to claims of prosecutorial misconduct).
Turning first to Petitioner's claim that the prosecutor's closing argument improperly impugned defense counsel for presenting false testimony from Angela Veliz, the Court of Appeal found that Petitioner had forfeited this claim because his trial counsel did not object. See Respondent's Lodgment 6 at 10. However, in rejecting Petitioner's related ineffective assistance of counsel claim, the Court of Appeal found it unlikely that the jury construed the prosecutor's statements as an attack on defense counsel rather than an attack on the witness, and also found it unlikely that the jury applied the prosecutor's statements in an objectionable fashion. See Respondent's Lodgment 6 at 14.
"In fashioning closing arguments, prosecutors are allowed reasonably wide latitude and are free to argue reasonable inferences from the evidence." United States v. McChristian , 47 F.3d 1499, 1507 (9th Cir. 1995) (citation omitted). "The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions." Ortiz-Sandoval v. Gomez , 81 F.3d 891, 898 (9th Cir. 1996) (citing Boyde v. California , 494 U.S. 370, 384-85 (1990)); see also Waddington v. Sarausad , 555 U.S. 179, 195 (2009) (same). Here, the prosecutor's argument suggesting that Petitioner's counsel called Veliz to lie for the defense may well have been improper. See, e.g., Leinweber v. Tilton, 490 Fed.App'x 54, 56 (9th Cir. 2012) (prosecutor's suggestion that defense counsel had encouraged witnesses to commit perjury by changing their anticipated testimony to be favorable to the defense was "highly improper and deserve condemnation and opprobrium"). As discussed below, however, this argument did not render Petitioner's trial unfair, and any error was harmless. See Darden , 477 U.S. at 181-82.
First, the prosecutor did not mischaracterize the evidence, but rather commented - albeit inappropriately - on the undisputed fact that Veliz changed her testimony at trial from all of her prior statements. Second, defense counsel had an opportunity to respond to the prosecutor's comments. Third, the trial court instructed the jurors that their decision was to be based on the evidence alone and that the arguments of counsel were not evidence. Fourth, the weight of the evidence against Petitioner was heavy, in that Petitioner admitted to accelerating the car as he drove the car into the crowd of people, and eyewitnesses testified to Petitioner's incriminating actions and demeanor before, during, and after the impact. See Darden , 477 U.S. at 181-82; Hein v. Sullivan , 601 F.3d 897, 912-13 (9th Cir. 2010), cert. denied, 131 S.Ct. 2093 (2011) (reiterating Darden factors); see also Leinweber v. Tilton, 490 Fed.App'x at 57 (similarly applying Darden factors to find no denial of due process); Tak Sun Tan v. Runnels , 413 F.3d 1101, 1113-18 (9th Cir. 2005), cert. denied, 546 U.S. 1110 (2006) (finding that trial court's numerous and thorough instructions, which provided that statements made by the attorneys are not evidence and the jury must not be influenced by passion or prejudice, eliminated any risk that petitioners were denied due process from prosecutor's statements arguably appealing to the jurors' passions); Wheelock v. Kernan, 2012 WL 359750, at *36-38 (N.D. Cal. Feb. 2, 2012), reconsideration denied, 2012 WL 787493 (N.D. Cal. Mar. 9, 2012) (rejecting claim that prosecutor improperly impugned defense counsel in light of, inter alia, the overwhelming evidence of guilt); cf. Parker v. Matthews , 132 S.Ct. 2148');"> 132 S.Ct. 2148, 2153-54 (2012) ("Parker") (denying habeas relief under AEDPA standard of review where the Sixth Circuit had granted habeas relief on a claim that the prosecutor committed misconduct in closing argument by suggesting that the petitioner had colluded with his lawyer and a witness to manufacture a defense of "extreme emotional disturbance"; observing that the Darden Court had upheld a closing argument "considerably more inflammatory" than the one at issue in Parker,  and that "particularly because the Darden standard is a very general one, leaving courts more leeway in reaching outcomes in case-by-case determinations, '" the Sixth Circuit's decision to grant habeas relief was unwarranted) (citations omitted).
Upon the Court's de novo review of this portion of his prosecutorial misconduct claim in light of the record as a whole, Petitioner is not entitled to habeas relief. Petitioner has not shown that the prosecution's closing argument rendered his trial so unfair as to violate due process. See 28 U.S.C. § 2254(a). The Court also finds that the prosecutor's statements did not have a substantial and injurious effect or influence on the jury's verdict.
Turning to Petitioner's claim that the prosecutor misstated the law of concurrent intent and the "kill zone" theory of liability, Petitioner asserts that the prosecutor incorrectly told the jury that Petitioner could be found guilty of the attempted murder of someone he assertedly did not intend to kill (Veliz) simply because she was in "some undefined zone of danger" (Pet. Att. A). Petitioner maintains that to have been found guilty of attempted murder of Veliz, he must either have intended to kill Veliz, or the nature of his attack must be such that he intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person (Pet. Att. A (citing People v. Anzalone , 141 Cal.App.4th 380, 393, 45 Cal.Rptr.3d 876 (2006)). The Court of Appeal rejected this claim (Respondent's Lodgment 6 at 12-13). The Court of Appeal reasoned that the trial court correctly instructed the jury on the law of concurrent intent (as Petitioner acknowledged, see Respondent's Lodgment 5, pp. 12-13) (citing C.T. 389),  and the jury is presumed to have followed the court's instructions (Respondent's Lodgment 6 at 12-13).
Under California law, a person may not be found guilty of attempted murder of more than one person unless there is a finding of specific intent to kill each person. People v. Bland , 28 Cal.4th 313, 330-31, 121 Cal.Rptr.2d 546, 48 P.3d 1107 (2002) (intent to kill does not transfer to another for attempted murder). "[A] primary intent to kill a specific target does not rule out a concurrent intent to kill others." Id. at 331 n.6. "Where the means employed to commit the crime against a primary victim creates a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended to harm all who are in the anticipated zone." Id. at 330. Here, the Court of Appeal found the trial court correctly instructed the jury on the California state law of concurrent intent as applied to the Veliz attempted murder charge. See Respondent's Lodgment 6 at 12; People v. Anzalone , 141 Cal.App.4th at 392-93 (citing with approval instruction given to Petitioner's jury)). This federal Court will not reexamine this state law determination. See Waddington v. Sarausad , 555 U.S. at 192 n.5 ("we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions") (citations and internal quotations omitted).
Turning once again to the Darden factors, Darden , 477 U.S. at 181-82, the Court finds that Petitioner has not shown that the prosecutor's explanation of concurrent intent, when viewed in the context of the entire record, rendered Petitioner's trial fundamentally unfair. Given the trial court's correct instruction on concurrent intent, the trial court's repeated admonishments that the statements of counsel are not evidence, the court's repeated directives that the jury must follow the law as the court stated it, the opportunity of Petitioner's counsel to rebut the prosecutor's statement, and the weight of the evidence against Petitioner with respect to the attempted murder count against Veliz (discussed below), the Court finds that the prosecutor's statements did not violate Petitioner's constitutional rights. 28 U.S.C. § 2254(a).
Petitioner argues that the presumption jurors follow their instructions "stands on precarious footing" because the jury was not given a specific admonition to disregard the prosecutor's allegedly incorrect statement of law at the time the statement was made (Pet. Att. B; Respondent's Lodgment 3 at 36-37). In light of the jury instructions, the Court of Appeal's rejection of this argument was not unreasonable. See generally Boyde v. California , 494 U.S. at 384-85 ("[T]he arguments of counsel, like the instructions of the court, must be judged in the context in which they are made."); see also Brown v. Payton , 544 U.S. 133, 146-47 (2005) (prosecutor's misstatement about law in closing argument, where jurors were instructed that prosecutor's comments were merely argument but not explicitly told that the prosecutor's statutory interpretation was incorrect, did not merit habeas relief where the jury otherwise was correctly instructed). Under the circumstances presented here, the prosecutor's statements did not have a substantial and injurious effect or influence on the jury's verdict.
For the foregoing reasons, Petitioner's prosecutorial misconduct claim does not merit habeas relief. See 28 U.S.C. § 2254(a). Petitioner is not entitled to habeas relief on Ground One of the Petition.
II. Petitioner's Claim that his Trial Counsel Rendered Ineffective Assistance Does Not Merit Habeas Relief.
Petitioner contends that his trial counsel was ineffective for failing to object to the prosecution's assertedly improper closing argument. See Petition, Ground Two; Pet. Att. B. The Court of Appeal rejected this contention, stating that the failure to object will rarely establish ineffective assistance, and ultimately finding no prejudice from the alleged misconduct. (Respondent's Lodgment 6, pp. 10-14).
A. Governing Legal Principles
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, 558 U.S. 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. 770, 787 (2011) (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.
B. Petitioner's Claim of Ineffective Assistance of Counsel Does Not Merit Habeas Relief
As previously discussed, the prosecutor's allegedly improper argument had no "substantial and injurious effect or influence" on the outcome of Petitioner's trial. Necessarily then, there exists no reasonable probability that an objection by Petitioner's counsel to the prosecutor's argument would have produced a different trial outcome. See Ibarra v. McDaniel , 656 F.3d 984, 1000 (9th Cir. 2011), cert. denied, 133 S.Ct. 424 (2013) (determination that prosecutor's improper argument did not "seriously affect" the fairness of the trial makes it "clear beyond debate" that defense counsel's failure to object to the prosecutor's argument was not prejudicial under Strickland); Ortiz v. Secretary, 2013 WL 787656, at *8 (M.D. Fla. Mar. 4, 2013) (because the prosecutor's comments, if error, had "no substantial and injurious effect or influence in determining the jury's verdicts, " "it is objectively reasonable to conclude that even had [the petitioner's] counsel objected" there would have been "no reasonable probability of a different outcome"); see also Kyles v. Whitley , 514 U.S. 419, 435 (1995) (a "reasonable probability" of a different trial outcome "necessarily entails" a "substantial and injurious effect or influence" on the trial outcome). The state courts' rejection of Petitioner's ineffectiveness claim was not "unreasonable" within the meaning of 28 U.S.C. section 2254(d). See Harrington v. Richter , 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on Ground Two of the Petition.
III. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Attempted Murder Conviction Regarding Angela Veliz Does Not Merit Habeas Relief.
As previously discussed, Petitioner was convicted of attempted second degree murder of Veliz for driving a car into a crowd of people including Veliz. Petitioner contends that the evidence was insufficient to support this conviction. See Petition, Ground Three; Pet. Att. C.
The Court of Appeal rejected this contention (Respondent's Lodgment 6, p. 14). The Court of Appeal reasoned that sufficient evidence supported a finding of an intent to kill Veliz, because the evidence showed that Petitioner "created a zone of harm by accelerating and veering the car toward the group [of people] standing next to Petitioner's principal target (Hobson), " a group of people which included Veliz (Respondent's Lodgment 6, p. 14).
A. Governing Legal Standards
On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell , 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 317 (1979) ("Jackson"). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson , 132 S.Ct. 2060');"> 132 S.Ct. 2060, 2065 (2012). In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Id. at 2064.
Jackson establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils , 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id . (citation omitted); see also McDaniel v. Brown , 558 U.S. 120, 133 (2010). At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils , 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court 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." Id . (citations and internal quotations omitted); see also Cavazos v. Smith , 132 S.Ct. 2, 4 (2011) ("it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial"). The prosecution need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson]." United States v. Nevils , 598 F.3d at 1164 (citation and internal quotations omitted).
At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." Id. at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id . (citations and internal quotations omitted; original emphasis).
This Court cannot grant habeas relief on Petitioner's challenges to the sufficiency of the evidence unless the state court's decision constituted an "unreasonable application of" Jackson. See Juan H. v. Allen , 408 F.3d 1262, 1274-75 (9th Cir. 2005), cert. denied, 546 U.S. 1137 (2006).
Considering the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt the requisite intent to kill Veliz. "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." People v. Smith , 37 Cal.4th 733, 751, 37 Cal.Rptr.3d 163, 124 P.3d 730 (2005) (citation omitted). As previously indicated, "a primary intent to kill a specific target does not rule out a concurrent intent to kill others." People v. Bland , 28 Cal.4th 313, 331 n.6, 121 Cal.Rptr.2d 546, 48 P.3d 1107 (2002). Thus, "[w]here the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone." Id. at 330-31 & n.6 (explaining that the concept of concurrent intent is "simply a reasonable inference the jury may draw in a given case"; where a defendant and his cohort fired a "flurry of bullets at a fleeing car" creating a "kill zone, " jury could reasonably find concurrent intent to kill passengers as well as driver of car who was the primary target); see also People v. Smith , 37 Cal.4th at 743 (evidence sufficient to support specific intent to kill two victims where the victims were both seated in a vehicle, one behind the other, with each directly in the shooter's line of fire); People v. Vang , 87 Cal.App.4th 554, 563-64, 104 Cal.Rptr.2d 704 (2001) (affirming attempted murder convictions for 11 victims who were in two houses at which defendants shot, even though defendants may have targeted only one person in each house; jury could reasonably infer intent to kill all 11 people from "the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons"); Fuentes v. Gonzales, 2012 WL 6628897, at *14 (E.D. Cal. Dec. 19, 2012) (evidence of intent to kill individuals within kill zone from "firing multiple times into a large group of individuals confined to a relatively small space" is "compelling, ' if not overwhelming"); cf. Wooten v. Haws, 2013 WL 943136 (E.D. Cal. Mar. 11, 2013) (recommending denial of claims of ineffective assistance of counsel in habeas case involving conviction for second degree murder and five attempted murder counts on concurrent intent/kill zone theory where the petitioner purposefully had driven his car into a group of people; evidence suggested that the petitioner specifically targeted only one person but actually hit six persons).
The evidence adduced at trial established that Petitioner drove Veliz's car into the crowd of people, hitting three people at roughly the same time (R.T. 1242-43, 1267, 1285, 1323, 1529). Just before the impact, neighbor Shari Baier saw Petitioner, looking angry or crazed, drive the car away, make a U-turn, then speed up to 20 or 30 miles per hour before driving on the wrong side of the road and into a crowd of 15 or 20 people who were standing in the street (R.T. 1225-27, 1233-34, 1245; see also R.T. 1305-06, 1528-29, 1836-39 (other witness testimony re same)). The three people who were hit were unable to move out of the way of the speeding car (R.T. 1234, 1267, 1306-07). Veliz was standing with Hobson, and Mozzy [Tehrani] was standing in between the other two (R.T. 1308). The driver's side front of the car hit Veliz's hip area, the front of the car hit Hobson more directly, (making him fly up like a rag doll and land on a sidewalk), and the front of the car also hit Mozzy (making him fly up and hit the car's windshield before landing near a fire hydrant) (R.T. 1235-37, 1242, 1267-69, 1308-10). Petitioner was looking angrily at the crowd up to the time of impact (R.T. 1237-38). Witnesses saw no brake lights before the impact (R.T. 1245, 1270, 1310, 1837).
Just moments before Petitioner got into Veliz's car and drove into the crowd, Petitioner had been blocked by Hobson and others from intervening in a fight between Maurice and Kyle (R.T. 1263-65, 1281-83, 1302-03, 1320-21, 1509, 1524-26, 1831-34, 1945-52). Hobson said that Petitioner had come at Kyle from behind with something in his hand like Petitioner was going to stab Kyle, so Hobson stepped in Petitioner's way and stood his ground until Petitioner backed away (R.T. 1947-52). Petitioner made stabbing motions at Hobson but Hobson did not back down (R.T. 1949-51).
As Petitioner was getting into Veliz's car, one witness heard Petitioner say, "You should have never fucked with the niggas" (R.T. 1303). After hitting the crowd, Petitioner reportedly got out of the car and said, "That's what you motherfuckers get for fucking with me" (R.T. 1270). Another witness said he heard Petitioner say, "Fuck you. I did this to you, the fuck." and "What's up?" suggesting Petitioner wanted to keep fighting after he got out of the car (R.T. 1557).
Viewed in the light most favorable to the prosecution, the above-described evidence permitted a rational trier of fact to find a zone of harm encompassing Hobson and anyone in his immediate vicinity, including Veliz and Mozzy, and also permitted a rational jury to find a specific intent to kill all three victims by driving into that zone. In arguing, as he did at trial, that Petitioner had no specific intent to kill Veliz, Petitioner invites this Court to reevaluate the evidence and draw new inferences therefrom. The Court may not do so on habeas review. See Wright v. West , 505 U.S. 277, 296-97 (1992). The Court of Appeal's finding that there was sufficient evidence from which a rational trier of fact could have found the requisite intent to kill Veliz was not contrary to and did not involve an unreasonable application of Jackson to the facts of this case, and was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d); Harrington v. Richter , 131 S.Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on Ground Three of the Petition.
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.