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Silva v. Frauenheim

United States District Court, E.D. California

March 30, 2017

RUBEN SILVA, JR., Petitioner,
v.
SCOTT FRAUENHEIM, Respondent.

          FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I. BACKGROUND

         On November 10, 2011, Petitioner was convicted after a jury trial in the Merced County Superior Court of second-degree murder for the benefit of or in association with a criminal street gang (count 1) and active participation in a criminal street gang (count 2). (4 CT[1] 727-28). The trial court sentenced Petitioner to an imprisonment term of fifteen years to life plus two years. (4 CT 803-06). On January 31, 2014, the California Court of Appeal, Fifth Appellate District modified the judgment to provide that execution of sentence imposed on count 2 is stayed pending service of the remainder of the sentence and affirmed the judgment as modified. People v. Silva, No. F064330, 2014 WL 350590, at *18 (Cal.Ct.App. Jan. 31, 2014). The California Court of Appeal denied a petition for rehearing on February 13, 2014, and the California Supreme Court denied Petitioner's petition for review on May 14, 2014. (LDs[2] 10-13).

         On May 4, 2015, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). In the petition, Petitioner raises the following claims for relief: (1) the trial court's failure to resolve the jury's confusion regarding the elements of aiding and abetting; (2) the trial court's erroneous instruction that a murder continues until the perpetrators reach a temporary place of safety; (3) the jury inadvertently receiving a legal memorandum that contained extensive discussion on the natural and probable consequences doctrine; (4) ineffective assistance of counsel; and (5) cumulative effect of trial errors. Respondent has filed an answer, and Petitioner has filed a traverse. (ECF Nos. 17, 21).

         II. STATEMENT OF FACTS [3]

         PROSECUTION EVIDENCE

Shortly after 11:00 p.m. on November 6, 2009, a group of men walked into the Pastime Club in Gustine.[4] In the group were defendant, who was wearing a black T-shirt; Albert Aleman, who was wearing a white T-shirt; Richard Naudin, who was wearing a hoodie; Brandon Carvalho, who was wearing a black and white Raiders jacket; identical twins Mark and Anthony Oseguera, one of whom was wearing a long jacket and thermal shirt, and the other of whom was wearing a long-sleeved white shirt; and Andrew Silva. All were members of the Mongols outlaw motorcycle gang except Silva, who was an affiliate. They appeared to search the bar, then left.
A short time later, Ashley Klug, Sara Galas, Bill James, Denise Gibbons, Amaro Morais, and Jennifer Herbst were in the Gustine Club when a group of men walked in. To Herbst, the men looked like gang members.[5] At least part of the group-including defendant-headed for James, yelling something like, “Mongols, motherfucker, Mongols, Mongols. What's up? Mongols.” They surrounded James, who responded, “I don't give a shit” or “I don't give a fuck who you are, ” and started to take off his jacket. Klug heard the sound of a knife opening. Galas saw defendant make a motion like he was flipping out a knife and she heard a knife open, although she did not see a weapon. Morais saw one of the men make a motion with his hand, and he heard a “flick” that sounded like a knife.
James had his jacket about halfway off when the man with the gray hoodie struck him in the face and all but one of the rest attacked James. Klug, who was sitting next to James, did not see James actually get stabbed, but when she got home, she found blood on her sweater. Gibbons similarly did not see James get stabbed, but she believed defendant was one of the men who lunged for James.
Morais saw someone between defendant and James, and defendant leaning over, making a motion that kind of went over the top and down on James. The one who Morais believed had a knife was making a thrusting motion. Morais grabbed this man from behind and was trying to pull him off when the man who had not joined in the attack pulled a canister about the size of a small fire extinguisher from inside his shirt and discharged pepper spray or a similar substance.[6] Morais could not see, but he felt everyone “swarming” toward the front door. Morais managed to run out where he saw James standing in the doorway of a white extended-cab pickup. It was parked in one of the parking stalls, the passenger side door was open, and James was fighting with someone in the backseat.
James was throwing punches when defendant, whom Morais described as wearing a white T-shirt with a Mongols insignia on the back, ran up behind James and stabbed him twice in the back with a 10- to 12-inch knife.[7] Defendant then ran behind the truck. He kind of threw his hands up and said something to James, then ran off. Morais did not know where he went; he was looking at James, and all the vehicles took off. James fell to the ground, bleeding badly in several places.
Gibbons saw James collapse. She bent down to see what was wrong with him, and her hands came up “full of blood.” She saw a “silverish” extended-cab pickup pull away with the passenger side door partially open. Galas saw the men who had attacked James jump in two or three different vehicles. One was a car, but defendant got in a dark-colored, black or charcoal gray truck. Herbst saw people jumping into a white Chevrolet Tahoe and a gray pickup and quickly driving away.
Gustine Police Officer Warner was the first officer on the scene, arriving shortly after 11:36 p.m. He found James covered in blood and face down, partly in the roadway and partly on the sidewalk, in front of the Gustine Club. A subsequent autopsy revealed James had seven sharp force injuries (stab and incised wounds) to his body.[8] Two of the wounds had an estimated depth of penetration of nine inches. Of these, one nearly cut the liver in half, passed through the diaphragm and one lung, and nicked the superior vena cava (a large vessel around the heart). The other penetrated the back, entered the abdominal cavity, and incised multiple loops of small bowel. Two of the other wounds had an estimated depth of penetration of four inches. One of these passed through part of one lung. The other penetrated a lung, incised the pericardium, and involved the vital structure near the center of the lung itself. The cause of death was multiple stab wounds. It was possible two or more knives were used. The mechanism of death was bleeding to death, a process that takes time that varies with the underlying health of the person. Given James's wounds, he would have had the ability to continue to move and attempt to defend himself even though he received, what turned out to be, a mortal wound.
At approximately 11:30 p.m., Merced County Sheriff's Deputy Daniel headed from Los Banos toward Santa Nella in search of a white Chevrolet Tahoe last seen headed southbound on Highway 33. As he came down the overpass on Henry Miller Road, he saw a white Chevrolet Tahoe southbound on Highway 33. It was followed so closely by a silver pickup that Daniel equated it to a Nascar race, with the pickup drafting the Tahoe.[9] Both vehicles turned into the parking lot of the Ramada Inn (now, the Hotel De Oro), then the Tahoe went north and the pickup went south.
As Daniel came around the north side of the hotel and approached the Tahoe, four to six males ran around the vehicle then they went into the hotel.[10] Daniel backed into the corner of the parking lot, where he could watch the Tahoe, and called for additional units. The men did not return. A group of 10 or more other men came out and were in the breezeway adjacent to the vehicle, but they never actually approached the Tahoe. Two males, a Hispanic female, and a White female exited the upstairs east wing of the facility. The White female came down the stairwell, opened the Tahoe with a remote, retrieved some items, and went back upstairs. She made three trips in all, then went back inside, followed by the Hispanic female and the two males.
After other officers arrived and established a perimeter, an approximately 16- inch-long sheath or scabbard that said “Mongols” was found lying in front of the Tahoe. Near the sheath was a black beanie/watch cap with a red stain on it that could have been blood. Another black beanie was found on the south side of the parking lot.
The Tahoe and the pickup were impounded and processed for evidence. James's blood was found in several locations both inside and outside the pickup, on the passenger side. Although defendant was excluded as a possible contributor to any of the blood samples taken from the pickup, his thumbprint was found on a snack bag inside the vehicle. James's blood was also found in several locations inside the Tahoe, as was blood from Mark or Anthony Oseguera.[11] Defendant was excluded as a possible contributor to any of the blood samples taken from the Tahoe. Fingerprints from Aleman and Naudin were found on or in the Tahoe.
The next morning, November 7, a maintenance worker at the hotel found a long-sleeved, white cotton shirt with red stains around the cuff and a large hunting-type knife under the first step of the back stairway at the east end of the building. The knife-which Morais testified “look[ed] very much” like the knife he saw used to stab James in the back-was next to the shirt. Traces of blood belonging to James and Mark and/or Anthony Oseguera were found on the blade. Defendant was excluded as a possible contributor. A mixture of DNA was found on the handle; Anthony and Mark Oseguera were possible contributors, James could not be excluded as a possible contributor, and defendant was excluded as a possible contributor. A black, white, and gray-plaid flannel shirt/jacket, and one or more white T-shirts, were found in a garbage can at a different location at the hotel.[12]Defendant's DNA was found on the collar of one of the T-shirts.
That same morning, a black-handled folding knife was discovered near the street end of one of the parking stalls down the block from the Gustine Club. Traces of James's blood were found on the handle. A DNA mixture of at least three contributors was also found on the knife. Mongol Rafael Valdez was included as a possible major contributor.[13] Defendant was excluded as a possible contributor toward either sample.
Later that day, defendant went to the Gustine Police Department to try to get the pickup released from impound. Defendant, who gave a home address in Whittier, explained he had arrived at the motel about 4:00 p.m. Friday afternoon, and had gone by himself to a bar in Gustine. He could not recall the name of the bar.[14]Defendant related that he walked in to get a drink, saw a commotion and Mace being sprayed, got scared, ran out, and got in the truck. As he started backing out, “some ... dude” started “jumping at” the vehicle and tried to lunge through the window. Defendant “threw [the truck] in reverse” and took off. Nobody was in the vehicle with him. (Full capitalization omitted.) Defendant had Mace in his eyes and could not describe the person, but when he got back to the hotel, he saw blood on the passenger door, which was the side through which the person had tried to gain entry. Defendant used a rag to clean it off. Defendant denied affiliating with the Mongols or having any friends who were Mongols. He denied having seen the individual before or exchanging words with him.
Sergeant Christopher Cervantes of the Montebello Police Department testified as an expert on the Mongols.[15] Cervantes explained that the Mongols are commonly referred to as a “one-percenter gang, ” meaning they belong to the one percent of American motorcyclists who are not law-abiding. The Mongols (who had 250 to 300 members in 2009) engage in both criminal and noncriminal activities. Their criminal activities include petty theft of motorcycle parts, grand theft of motorcycles, drug sales, firearms proliferation, witness intimidation, violent assaults, and murder. Cervantes testified that, although Mongols have enemies among the Mexican Mafia-affiliated Sureño street gangs in Southern California, their “most bitter and probably bloody rival” is the Hell's Angels, an enmity that has endured for years. The Mongols-whom Cervantes characterized as even more violent than the Hell's Angels-“associate [ ] with” the colors black and white, and typically wear any variation of those colors; the Hell's Angels, the colors red and white. Both the Mongols and the Hell's Angels claim Central California as their territory, although the Hell's Angels are a “dominant presence” in Northern California, including the Merced area.
According to Cervantes, it is common for the Mongols to have large parties. Their standard protocol for such events is to rent hotels or other facilities and run their own security. When coming into enemy territory, Mongols are completely self-regulated. They stay where they are at, such as at a hotel they know is going to be safe. In Cervantes's experience, when the Mongols are together in large groups at a hotel or at an event, law enforcement has very few problems with them. When small groups leave and go to bars or other public places, however, simple fights, stabbings, shootings, or assaults occur.
Cervantes related that a “rat pack”-when a person gets jumped or beaten by multiple people-is a common activity of the Mongols. Cervantes testified that Mongols are indoctrinated into an “at war” mindset that is “on guard” for the Mexican Mafia and, more importantly, for Hell's Angels who are to be dealt with “on[ sight]” which “included murder.” A Mongol must “jump in” and “protect [their] members” if a member of a Mongols' chapter or organization is involved in any type of physical activity or fight. Mongols are required to carry knives, and weapons may be used even if the victim does not have one. The Mongols' written protocol reminds members that what they do reflects on the club, and to “[n]ever make the club look bad.” When someone “disrespects” one Mongol, it is viewed as extending to the whole group. Failing to address the insult makes the club “look bad.” Such failure could result in the individual being kicked out of the club. Cervantes explained that a Mongol would not be with the group long if he failed to act. Because “disrespect” to one is “disrespect” to all, if a group of Mongols were together and one was “disrespected, ” the group would get involved. If they were not armed (for instance, because they were in a bar that checked for weapons at the door), then they would use their feet (kicks), or bottles, or anything similar in the attack. If they were armed, they would “go immediately to” weapons. The entire group would participate in the attack; they are empowered by numbers, acting as a group solidifies their unity. Typically, they would assist each other in getting rid of evidence.
In Cervantes's opinion, going into the Gustine Club and yelling “Mongols, motherfuckers, Mongols, what's up?” was to see “who wanted to disrespect their presence.” Given his appearance, James could easily have been mistaken for a Hell's Angel, and his response to the group yelling out their gang name would have been considered disrespectful. In Cervantes's opinion, “disrespect ... ultimately ended up costing ... [James his] life.” Cervantes viewed a video from the Pastime Club and identified the Mongols who walked into the bar. The group did not make contact with anyone inside, nor did they order drinks. Instead, they looked around in “high alert.” In Cervantes's experience, they were identifying problems and/or rivals, meaning potential Hell's Angels. Cervantes explained that the group was a “war party.” They left the secured hotel, then secured the bar. When nothing sparked their interest, either the presence of Hell's Angels or disrespect, they left. In Cervantes's opinion, the group was “on a hunt.” They were in Northern California-where the Hell's Angels dominate-and entered the bar looking for issues. When they found no one, they went on to the next bar. Although a Hell's Angel would be their preferred victim, anyone disrespecting them would do. Cervantes opined that when the group left the hotel that night, they were “100 percent sure” this type of trouble was possible and that somebody could die, although what occurred was not a planned event.
DEFENSE EVIDENCE
Gary Mendonica was in the Gustine Club at the time of the incident. He was watching television when some kind of aerosol was discharged in the area behind him. He did not recall hearing anyone yell “Mongols” or anything similar. Mendonica ran outside. He did not really see a fight outside, but he saw James stumble out and fall down.
Warner interviewed Morais outside the Gustine Club shortly after the incident. Morais related that one person who came into the club bumped into James, and that James said, “What the fuck motherfucker.” Asked if the individuals specifically targeted or went to James, Morais said no.
Merced County Sheriff's Detective Taylor interviewed Morais on November 7. Morais related he was about 20 to 25 feet from the door, and James was about eight feet down from him toward the back, when a group of about six men came “piling in.” One, who was wearing a black, gray, and white-checkered flannel shirt, said, “Mongols motherfucker, what's up? Mongols. What's up? What's up? Mongols. Mongols.” As the man walked by, Morais saw him reach into his pocket and make a motion, and then heard a sound he knew was a knife. Out of the corner of his eye, he saw James quickly turn around. Morais thought somebody bumped into him, or perhaps it was when the man yelled “Mongols.” Whatever the reason, the group went straight to James and were “on him” all at once. The man with the knife looked like he punched James in the upper torso. According to Morais, the group were all wearing Mongol “one-percenter” T-shirts, white with black print, but no vests. Someone discharged pepper spray then they all “rush[ed] out.” Morais related he managed to get outside where he saw a gray or silver extended-cab pickup. The passenger side door was open. James was standing in the door, “cracking” somebody inside the truck. Someone then came from Morais's left. Morais jumped up to grab him, but something happened and Morais fell. When he looked up, he saw the man hit James twice in the back. Morais described the man as five feet seven or eight inches tall, between 180 and 210 pounds, short and squatty, with a “[b]ig mouth on him.”[16] This was one of the first men who walked in, and it was the one yelling “Mongols motherfucker, Mongols.” The man who hit James did not get into the truck, but got into his own vehicle. There was a white vehicle on the other side of the truck.
Detective Clark talked to defendant shortly after defendant was detained. Clark observed no obvious signs that defendant had been in a fight.
James Hernandez, a professor of criminal justice at California State University, Sacramento, testified as a gang expert. Hernandez disagreed with Cervantes's assessment of the group “storming” the Pastime Club. In Hernandez's opinion, the video simply showed a group of men going into a bar. He opined that they walked toward the restroom to use the bathroom. Based on his review of various reports and other materials, Hernandez did not believe the group left the hotel looking for trouble. He found nothing to suggest James could have been confused with, or identified as, a Hell's Angel. Hernandez disagreed with Cervantes's opinion that the group was a war party, and found nothing unusual in the group looking around their location.
Hernandez did not believe it was necessarily true that every Mongol present would have participated in the stabbing. He explained there were a growing number of situations in which an altercation began and members of the club dragged their own people away. He found a lot of the behavior of the outlaw motorcycle clubs to have changed “drastically” in the few years before trial.
Robert Shomer, an experimental psychologist, testified as an expert on eyewitness identification. He explained that eyewitness identification of a stranger has a low level of reliability, especially if the identification is made under circumstances including a sudden, unexpected event; multiple individuals; high stress; some kind of impairment of the eyewitness such as fatigue, drugs, alcohol, or the focus of attention; the lighting; and the distance. Further, the identification procedure itself, if not done correctly, taints, alters, and sometimes ruins the evidence. The police must get as much information as possible from the witness before showing him or her anything, because showing the witness something alters the evidence. Memory is dynamic and incorporates information obtained from other people. The most accurate reports are the initial reports made by a witness, after he or she has had a little time to calm down. The initial reports do not suffer from memory decay or, to the extent witnesses can be kept from talking to each other, from incorporation of information from other people.
In answer to a hypothetical question based on evidence adduced at trial, Shomer opined the situation was not one in which perceptions would be expected to be highly accurate. If eyewitnesses were shown a video taken at the first location, but no video of the second location where the stabbing occurred, and they were then shown photographic lineups, the procedure would be suggestive and tainting, and likely to change the evidence in the witness's head. The procedure could produce a false identification.

Silva, 2014 WL 350590, at *1-7 (footnotes in original).

         III. STANDARD OF REVIEW

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged convictions arise out of the Merced County Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his 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); Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.

         As a threshold matter, this Court must “first decide what constitutes ‘clearly established Federal law, as determined by the Supreme Court of the United States.'” Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law, ” this Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words, ‘clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition, the Supreme Court decision must “‘squarely address [] the issue in th[e] case' or establish a legal principle that ‘clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Musladin, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.

         If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was “contrary to, or involved an unreasonable application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. “The word ‘contrary' is commonly understood to mean ‘diametrically different, ' ‘opposite in character or nature, ' or ‘mutually opposed.'” Williams, 529 U.S. at 405 (quoting Webster's Third New International Dictionary 495 (1976)). “A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Id. If the state court decision is “contrary to” clearly established Supreme Court precedent, the state decision is reviewed under the pre-AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).

         “Under the ‘reasonable application clause, ' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. “[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also Lockyer, 538 U.S. at 75-76. The writ may issue only “where there is no possibility fair minded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents.” Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could disagree on the correctness of the state court's decision, the decision cannot be considered unreasonable. Id. If the Court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

         The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be overcome by a showing “there is reason to think some other explanation for the state court's decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

         Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any “reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. 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 [the Supreme] Court.” Id. at 102.

         IV. REVIEW OF CLAIMS

         A. Trial Court's Instructions

         1. Trial Court's Response to Jury Question

         In his first claim for relief, Petitioner asserts that the trial court failed to resolve the jury's confusion about the elements of aiding and abetting liability, in violation of due process. (ECF No. 1 at 22).[17] Respondent argues that the state court's denial of the claim was reasonable and that the trial court's reference to the wrong jury instruction number in its response did not have a substantial and injurious effect or influence on the verdict. (ECF No. 17 at 25).

         Petitioner raised this claim on direct appeal to the California Court of Appeal, Fifth Appellate District, which denied the claim in a reasoned decision. The California Supreme Court summarily denied Petitioner's petition for review. As federal courts review the last reasoned state court opinion, the Court will “look through” the California Supreme Court's summary denial and examine the decision of the California Court of Appeal. See Brumfield v. Cain, 135 S.Ct. 2269, 2276 (2015); Johnson v. Williams, 133 S.Ct. 1088, 1094 n.1 (2013); Ylst, 501 U.S. at 806.

         In denying Petitioner's due process claim with respect to the trial court's alleged failure to resolve the jury's confusion about the elements of aiding and abetting liability, the California Court of Appeal stated:

RESPONSE TO JURY'S QUESTION
Defendant says the trial court violated his due process rights by failing to clear up the jury's confusion about the elements of aiding and abetting. We conclude the trial court acted within its discretion.
A. Background
Defendant was tried as an aider and abettor. In pertinent part, the jury was instructed, pursuant to CALCRIM No. 400 (Aiding and Abetting: General Principles):
“A person may be guilty of a crime in two ways: One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted that perpetrator who directly committed the crime. A person is guilty of the crime whether he or she committed it personally, or aided and abetted the perpetrator.
“Under some specific circumstances if the evidence establishes aiding and abetting in one crime, and [sic] a person may also be found guilty of other crimes that occurred during the commission of the first crime.”
Pursuant to CALCRIM No. 401 (Aiding and Abetting: Intended Crimes), jurors were told:
“To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: One, the perpetrator committed the crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime; and four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime.
“Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to and does in fact aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime.
“If all of these requirements are proved the defendant does not need to actually have been present when the crime was committed to be an aider and abettor.
“If you conclude that the defendant was present at the scene of the crime and failed to prevent the crime you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.”
Finally, jurors were instructed, pursuant to CALCRIM No. 403 (Natural and Probable Consequences (Only ...

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