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Montalbo v. Frauenheim

United States District Court, N.D. California

June 21, 2017

MARIO MOSES MONTALBO, Petitioner,
v.
S. FRAUENHEIM, Warden, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO CLERK

          HAYWOOD S. GILLIAM, JR. United States District Judge

         Petitioner has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction.[1] Respondent has filed an answer to the petition, and petitioner has filed a traverse. For the reasons set forth below, the petition is denied.

         I. BACKGROUND

         In 2011, petitioner and a co-defendant, Valentin Mata, were found guilty by a jury in Santa Clara County Superior Court of two counts of assault with a deadly weapon. The jury found true the allegation that Mata personally inflicted great bodily injury on one of the two victims, and found not true the allegation that petitioner personally inflicted great bodily injury on the other victim. CT at 436-349, Ex. 1.[2] The trial court found true the allegations that petitioner suffered three prior strike convictions: two for assault with a firearm and one for making criminal threats. CT 352-353; RT 1139-1146, Ex. 3. Petitioner was sentenced to a term of 30 years to life in prison. (CT 613-621.)

         Petitioner appealed the conviction. The California Court of Appeal affirmed the conviction in an unpublished opinion on June 2, 2014, and as modified on June 6, 2014. Exs. 7 and 9. On August 20, 2014, the California Supreme Court summarily denied review. Exs. 12 and On August 13, 2015, petitioner filed a habeas petition in the California Supreme Court, which denied the petition on November 10, 2015. Exs. 14 and 15.

         Petitioner filed the instant federal habeas petition on August 13, 2015, raising the claims from his direct review and state habeas petition.

         II. STATEMENT OF FACTS

         The following facts are taken from the opinion of the California Court of Appeal on direct appeal[3]:

At about 1:00 a.m. on February 20, 2010, Jeffrey Aana and Yusuf Ali Smith left a bar at Third Street and East Santa Clara Street in downtown San Jose and headed west on East Santa Clara Street toward Aana's car, which was parked near Santa Clara Street and San Pedro. As they passed 75 East Santa Clara Street, they encountered a group of three Hispanic men and two Hispanic women walking toward them from the opposite direction. One of the women asked if they had a lighter, and Aana said “No. I don't smoke.” One of the men in the group responded: “Fuck you then, nigger” or “[p]unk-ass nigger.” Smith is African-American, and Aana is Hawaiian/Filipino. Smith turned around and said “'Excuse me? What?'” “'What did you say?'” A portion of this first encounter between Smith and Aana and the group of five was captured on video by a surveillance camera.
A short man with closely cropped hair and a thick build was wearing a long-sleeved white sweater approached Smith, repeated his comment, and tried to punch Smith. Smith avoided the punch and punched the man, who was Montalbo. Smith proceeded to fight with “a taller dude” who was slender and whom Smith subsequently identified as Mata. [FN2] When one of the women interjected herself, Smith hit her in the face, and she fell to the ground. The third man, who did not engage in the fight with Smith, was shorter and thinner than Montalbo and was wearing a hat. Aana was not hit during the fistfight, which was “broken up… within second.” Smith was also uninjured in the fight. Aana and Smith resumed walking toward Aana's car. After Aana and Smith walked away, the video showed the group of five gathering together and apparently conversing before reversing their direction and following Aana and Smith. A group of police officers was nearby, and their attention was drawn to the commotion. When the police approached, they saw three or four men run westbound across Second Street toward First Street, which was the direction in which Smith and Aana had gone.
FN2. Montalbo would never be described as tall or slender. A surveillance video showing him leave the scene depicts him as a stocky man of medium height. The evidence at trial established that Mata was taller and significantly thinner than Montalbo.
Right after Smith and Aana crossed Second Street toward First Street, they heard yelling behind them and turned and saw the three men running “[f]ull speed” toward them from behind. Aana backed up into a doorway so that he could protect himself. Smith was on the street side of the sidewalk near 35 East Santa Clara Street. Two of the men approached Aana, and he felt something hit his chest. One of them grabbed Aana's arms and said “'I got you. I got you.'” Meanwhile, Montalbo ran up to Smith, and he and Smith began hitting each other. Montalbo fell over, and then Mata, who had been over by Aana, “just lunged into” Smith. Smith hit Mata, and Mata fell over. Montalbo then “threw his body into” Smith. Smith did not see any weapons and did not feel himself being stabbed at any point during this fight. Smith did feel Montalbo punch him in the chest in the same location where he subsequently noticed he had a stab wound. Smith had no contact with the third man (the one who was short and thin and wearing a hat).
Police officers in the area noticed this second fight. A police officer saw Montalbo punch Smith in the center of his upper chest with his right hand, and he heard a “clinking sound” on the ground like something heavy and metal was being thrown on the ground. He yelled at the men to stop, and they separated. A Hispanic woman nearby with a bloody cut on her face told the officer that Smith had hit her and that Montalbo was helping her. Montalbo was wearing a white-long-sleeved shirt. Montalbo embraced the woman. The officer told Montalbo to move away, and Montalbo left eastbound. Aana noticed blood dripping from his body and realized that he had been stabbed. The two men who had confronted Aana had “disappeared.” Aana told a police officer that he had been stabbed and that a Hispanic man wearing a white shirt had a knife. Smith thereafter realized that he had been stabbed in the left side of his chest and that his neck had been slashed.
When the police realized that Smith and Aana both had stab wounds, they pursued Montalbo and took him into custody. Smith identified Montalbo at the scene of the stabbings as the short, thick man he had been primarily fighting. Mata was stopped by police nearby as he was walking away from the scene of the stabbings. His right hand was bleeding profusely from a cut on his thumb, and his clothing was covered in blood. He told the police that a black man had punched him in the face. A folding knife with Mata's blood on it was found in a corner of a doorway at 35 East Santa Clara Street. There was also blood on the ground and on the wall at that location. Aana's DNA was not detected on the knife. Mata's DNA was on the handle, blade, and tip of the knife. Smith's DNA was found in bloodstains on Montalbo's shirt.
Both Aana and Smith were taken to the hospital. Aana had a wound in the left side of his chest that was six inches long and had caused his lung to collapse. His wound required surgery, and he was hospitalized for several days. Smith's wounds, while less serious, had also caused his lung to collapse. His wounds were stapled closed, and he was released from the hospital after two hours. Smith identified Mata at the hospital as the taller, thinner man who also had been fighting him.

         People v. Montalbo et. al., No. H038197, slip op. at 2-5 (Cal.Ct.App. June 2, 2014), Ex. 7 (hereinafter “Op.”).

         III. DISCUSSION

         A. Standard of Review

         This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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).

         “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 v. Taylor, 529 U.S. 362, 412-13 (2000). The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be “reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

         “Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)'s 'unreasonable application' clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” Id. at 409. The federal habeas court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         Here, as noted above, the California Supreme Court summarily denied petitioner's petition for review. See supra at 2; Ex. 13. The California Court of Appeal, in its opinion on direct review, addressed claims one through four in the instant petition. Ex. 7. The Court of Appeal thus was the highest court to have reviewed those claims in a reasoned decision, and, as to those claims, it is the Court of Appeal's decision that this Court reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).

         Petitioner raised claims five and six for the first time in a habeas petition before the California Supreme Court, Ex. 14, which denied the petition with citations to People v. Duvall, 9 Cal.4th 464, 474 (1995), and In re Swain, 34 Cal.2d 300, 304 (1949). Ex. 15. Accordingly, it is that state high court's decision which is subject to review with respect to those two claims.

         The Supreme Court has vigorously and repeatedly affirmed that under AEDPA, there is a heightened level of deference a federal habeas court must give to state court decisions. See Hardy v. Cross, 132 S.Ct. 490, 491 (2011) (per curiam); Harrington, 131 S.Ct. at 783-85; Felkner v. Jackson, 131 S.Ct. 1305 (2011) (per curiam). As the Court explained: “[o]n federal habeas review, AEDPA 'imposes a highly deferential standard for evaluating state-court rulings' and 'demands that state-court decisions be given the benefit of the doubt.'” Id. at 1307 (citation omitted). With these principles in mind regarding the standard and limited scope of review in which this Court may engage in federal habeas proceedings, the Court addresses Petitioner's claims.

         B. Claims and Analysis

         Petitioner asserts the following grounds for relief[4]: (1) there was insufficient evidence to support the conviction for assault with a deadly weapon, Pet. Attach. at 5B (claim two); (2) the trial court erred in jury instructions regarding aider and abettor liability and natural and probable consequences in the absence of sufficient evidence in support thereof, id. at 5B (claim three); (3) the trial court erred in instructing the jury on aiding and abetting by misstating the elements of the charge, id. at 5A (claim one); (4) cumulative prejudice, id. at 5C (claim four); (5) his right to due process and a jury trial were violated when the trial court failed to strike prior strikes which stemmed from a single act, Pet. Ex. A at 3; and (6) ineffective assistance of appellate counsel for failing to appeal the trial court's error under claim 5, id. at 4.

         1.Insufficient Evidence

         Under claim two of the petition, petitioner claims that his conviction was unsupported by sufficient evidence in violation of due process. Pet. Attach. at 5B. Specifically, petitioner claims that the evidence did not support the theory that the assaults with a deadly weapon were the “natural and probable consequences of simple assaults.” Id.

The state appellate court reviewed what occurred at trial with respect to this claim:
The prosecution's theory at trial was that Mata had stabbed Aana, Montalbo had stabbed Smith, and they had each aided and abetted the other's assault with a deadly weapon.
Montalbo's trial counsel objected to aiding and abetting instructions on the ground that there was insufficient evidence to show that, if Montalbo was not the stabber, he knew that the perpetrator intended to commit a stabbing. He conceded that if the jury found that Montalbo stabbed Smith there would be sufficient evidence to find that Montalbo aided and abetted the stabbing of Aana. Mata's trial counsel joined in this objection. The court found that there was sufficient evidence to support the aiding and abetting instructions (CALCRIM Nos. 400 and 401). Both defendants also ...

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