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Avila v. M. Biter

United States District Court, Central District of California

November 7, 2014

M. BITER, Warden, Respondent

Jose Antonio Avila, Petitioner, Pro se, Delano, CA.

For M Biter, Warden, Respondent: Michael C Keller, LEAD ATTORNEY, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA; Scott A Taryle, CAAG - Office of Attorney General of California, Los Angeles, CA.


ALICIA G. ROSENBERG, United States Magistrate Judge.

The court submits this Report and Recommendation to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons set forth below, the magistrate judge recommends that the Petition for Writ of Habeas Corpus be denied.



On November 6, 2009, a Los Angeles County Superior Court jury found Petitioner guilty of first degree murder and found true certain firearm and gang enhancements. (Lodged Document (" LD") 1 at 663.) The court sentenced Petitioner to 50 years to life in state prison. (Id. at 687.)

On June 6, 2011, the California Court of Appeal affirmed. (LD 6.) On August 10, 2011, the California Supreme Court denied review. (LD 8.)

On October 30, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody. Respondent filed an answer and Petitioner filed a reply.



Below are the facts set forth in the California Court of Appeal decision on direct review. To the extent an evaluation of Petitioner's claims for relief depends on an examination of the record, the court has made an independent evaluation of the record specific to Petitioner's claims for relief.

A. The Shooting

On May 5, 2008, between 7:00 and 7:30, Juan Siordia known by the gang moniker " Slim, " and Alejandro Villa known by the gang moniker " Slash, " were on Van Nuys Boulevard. Siordia and Villa were associated with the Terra Bella Gang. One of the rivals of the Terra Bella Gang was the Project Boyz Gang. Prior to May 5, Siordia and Villa fought with Project Boyz Gang members on multiple occasions.

Siordia and Villa were near a Wells Fargo bank for about five minutes when a " kid" approached them on a bicycle. The kid said " Project Boyz, " and Siordia responded " fuck rejects, " which is a disrespectful reference to the Project Boyz Gang. The kid and Siordia fought. Siordia saw a group of between 10 and 15 young men approaching. Some of the young men fought with Siordia and some fought with Villa. The fight lasted approximately 20 seconds before Siordia and Villa ran away. While they were running, Siordia heard a gunshot and saw Villa fall to the ground. Siordia did not see who fired the gun. Villa died as a result of a single gunshot wound to his lower back.
Noemi Solorio was walking to the Wells Fargo bank when she saw about four young men fighting. Approximately one minute later she heard a gunshot. Solorio saw the victim on the ground and called an ambulance. Jaime Gurrola, Solorio's son, also heard a gunshot and saw several boys run away. Juan Cepeda was also in the area at the time of the shooting. Cepeda saw six or seven young men fight, heard a gunshot, and then saw the victim on the ground.

B. Evidence and Trial

After the shooting, Los Angeles Police Officer Travis Coyle went to the San Fernando Gardens Housing Project to look for possible suspects. Officer Coyle saw Juan Reyes, Adrian Cervantes, Elias Sanches and appellant. All four of the young men were detained and later released after Officer Coyle learned that no witnesses were coming to identify them. Detective Joshua Byers responded to the scene of the shooting to collect evidence and found a nine-millimeter bullet casing on the ground.

The day after the shooting, Detective Mario Santana and Detective Heather Gahry conducted a recorded interview of Adrian Cervantes that was played for the jury. Cervantes admitted that he and appellant were both members of the Project Boyz Gang. Cervantes told Detectives that he was with appellant and two other friends the day of the shooting. They saw two rival gang members, approached them, and issued a gang challenge and then they all began to fight. At some point, the two young men ran away and appellant pulled out a gun. Cervantes told appellant not to shoot. Appellant shot one of the young men. Cervantes and his friends fled the scene. Cervantes later asked appellant what he did with the gun but appellant refused to tell him.[FN1]
[FN1] At trial, Cervantes denied ever being a member of the Project Boyz Gang. He testified that he was not on Van Nuys Boulevard the day of the shooting. He denied knowing appellant and claimed he never identified any photograph of appellant. He denied speaking with detectives.
Officers Byers and Martinez conducted a recorded interview of Jesus Marin on August 24, 2008, that was played for the jury. Marin stated that appellant claimed responsibility for the shooting. According to Marin, appellant approached Marin prior to the shooting and said he wanted to " put in some work" for the gang. Appellant told Marin he already had a gun and a " posse" to go with him. Appellant showed Marin the gun and asked if he wanted to join them, but Marin declined.
Marin stated that he spoke with appellant the day after the shooting and appellant told Marin he killed a person named Slash. A few weeks later, appellant gave Marin more details about the shooting. Appellant told Marin they went around the neighborhood looking for rival gang members when they saw Slash. A fight ensued when Slash said disrespectful things toward the Project Boyz Gang. Appellant further told Marin that he pulled out a gun and shot Slash when he attempted to run away.[FN2]
[FN2] At trial, Marin testified that he did not know or recognize appellant. He also testified that he was not interviewed by detectives regarding the shooting.
On October 24, 2008, detectives conducted a recorded interview of appellant which was played for the jury. Appellant acknowledged being a member of the Project Boyz Gang. Appellant initially denied any involvement in the shooting. Later in the interview, appellant admitted he was present during the shooting but denied shooting anyone. Appellant stated that he was with Cervantes and two other people when a fight broke out; however he was not involved in the fight or the shooting. Appellant stated that he initially lied about not having been at the scene because he was scared of being accused of killing Villa.
In a subsequent interview, appellant admitted that he shot Villa but claimed he fired the gun accidently. Appellant stated he found the gun in a park near some trash cans the day of the shooting. Appellant claimed he was slightly intoxicated and pulled the gun out during the fight and it " went off on me." Appellant denied aiming the gun at Villa.
Appellant was charged with first degree murder ( Pen. Code, § 187, subd. (a) ), with allegations that he committed the offense for the benefit of a criminal street gang ( Pen. Code, § 186.22, subd. (b)(1)(C) ) and that a principal personally and intentionally used a firearm causing death ( Pen. Code, § 12022.53, subds. (b)-(e)(1) ).
Los Angeles Police Officer Fernando Avila was assigned to the Foothill Division's gang enforcement detail. At trial, Officer Avila testified that appellant was a self-admitted member of the Project Boyz Gang. Their primary activities include murder, attempted murder, robbery, attempted robbery, witness intimidation, carjacking, vehicle theft, and possession and sales of narcotics. Officer Avila testified the shooting occurred in rival territory.
Los Angeles Police Officer Rodolfo Rodriguez testified that gang members move up in status with the gang by " putting in work" which often means committing some type of violent act upon a rival gang member. Based on a hypothetical mirroring of the prosecution's evidence, Officer Rodriguez testified the shooting of Villa was committed for the benefit of the Project Boyz Gang. Appellant's sister, Elida Avila, testified that she was at the park with appellant at the time of the shooting. She testified that she sat with appellant to watch a soccer practice. Appellant's sister-in-law also testified she was at the park with appellant at the time of the shooting. Witnesses Yesenia Gomez, Maria Gomez, Austin Gomez and Omar Alvarez also testified that they saw appellant at the park during the evening of the shooting.
At trial, appellant testified he was a member of the Project Boyz Gang. He testified that he was not involved in the shooting on May 5th and he was at the park watching a soccer practice. Appellant testified he falsely admitted shooting Villa because he was scared, and he believed he would be able to go home if he admitted to committing the crime.
Defense's expert witness testified that one might falsely confess to a crime if they believe they will receive a lesser punishment if they confess.

(LD 6 at 2-5.)



A federal court may not grant a petition for writ of habeas corpus by a person in state custody with respect to any claim that was adjudicated on the merits in state court unless it (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); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011).

" '[C]learly established Federal law' . . . is the governing legal principle or principles set forth by the Supreme Court at the time the state court rendered its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Clearly established federal law includes only the holdings, as opposed to the dicta, of Supreme Court decisions. White v. Woodall, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014).

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. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (citation omitted). A state court's decision cannot be contrary to clearly established Federal law if there is a " lack of holdings from" the Supreme Court on a particular issue. Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006).

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." Andrade, 538 U.S. at 76; see also Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (" An 'unreasonable application' occurs when a state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of petitioner's case.") (citation and some quotation marks 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, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). " The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted).

" Under § 2254(d), a habeas court must determine what arguments or theories supported or, [in the case of an unexplained denial on the merits], 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 [Supreme] Court." Richter, 131 S.Ct. at 786. " [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." Id. at 786-87.

" Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

In applying these standards, this court looks to the last reasoned State court decision. Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006). To the extent no such reasoned opinion exists, as when a state court rejected a claim without explanation, this court must conduct an independent review to determine whether the decisions were contrary to, or involved an unreasonable application of, " clearly established" Supreme Court precedent. Walker v. Martel, 709 F.3d 925, 939 (9th Cir.), cert. denied, 134 S.Ct. 514, 187 L.Ed.2d 366 (2013); Haney v. Adams, 641 F.3d 1168, 1171 (9th Cir. 2011). If the state court declined to decide a federal constitutional claim on the merits, this court must consider that claim under a de novo standard of review rather than the more deferential " independent review" of unexplained decisions on the merits. Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009); see also Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (standard of de novo review applicable to claim state court did not reach on the merits).



The California Court of Appeal's opinion was the last reasoned decision on the sole ground raised in the petition.

The trial court instructed the jury on first degree murder, second degree murder and involuntary manslaughter. Petitioner argues that the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter based on a sudden quarrel or heat of passion based on the fistfight that preceded the shooting.

There is no clearly established Supreme Court law requiring the giving of a lesser included offense instruction in noncapital cases. In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Supreme Court held that failure to instruct on a lesser included offense in a capital case would be constitutional error if there is evidence to support the instruction. Id. at 637-38. The Supreme Court left open the question " whether the Due Process Clause would require the giving of such instructions in a noncapital case." Id. at 638 n.14; see Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (Supreme Court has " never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense"). When, as here, the Supreme Court expressly reserves an issue, Petitioner cannot show that a state court's decision is contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1); see Carey, 549 U.S. at 77. The Ninth Circuit has acknowledged that " [t]here is no settled rule of law on whether Beck applies to noncapital cases." Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995), overruled on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999) (en banc); Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998). Accordingly, the state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law. Carey, 549 U.S. at 77.

Moreover, a claim involving only the application or interpretation of California law is not cognizable on federal habeas review. See Bradshaw, 546 U.S. at 76. Petitioner has not shown any error under California law in any event. The California Court of Appeal found no evidence that Petitioner killed under sudden quarrel or heat of passion. (LD 6 at 6-7.) The doctrine of sudden quarrel or heat of passion has both objective and subjective elements. To satisfy the objective element, there must be evidence of sufficient provocation. " The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Id. at 7 (citation omitted).) The record indicated Petitioner approached Marin and said he wanted to put in work for the gang. Petitioner obtained a gun, assembled other gang members and entered rival gang territory. Petitioner and his group initiated the fistfight and outnumbered the two rivals. When Siordia and Villa ran away after a 20-second fight, Petitioner shot Villa in the back. " There is no evidence that the victim did anything to provoke [Petitioner]" or that " the victim engaged [Petitioner] in any physical or verbal altercation." (Id. at 7-8.) Moreover, under California law, Petitioner could not claim adequate provocation when his group initiated the fight. (Id. at 8.) In finding Petitioner guilty of first degree murder, the jury necessarily found premeditation, a state of mind inconsistent with sudden quarrel or heat of passion.

The state court's decision was not contrary to, or an unreasonable application of, clearly established federal law and was not an unreasonable determination of the facts. Ground One does not warrant habeas relief.[1]



For the reasons discussed above, it is recommended that the district court issue an order (1) accepting this Report's findings and recommendation; and (2) directing that judgment be entered denying the petition and dismissing this action with prejudice.

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