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Canseco v. Peery

United States District Court, E.D. California

November 20, 2017

EDGAR JOSE CANSECO, Petitioner,
v.
SUZANNE M. PEERY, Respondent.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner who, represented by counsel, is proceeding with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on June 13 and 14 of 2012 in the San Joaquin County Superior Court on charges of first degree murder, attempted second degree robbery, firearm and gang enhancements to each of those offenses, and the special circumstance allegation that the murder occurred during the commission of an attempted robbery. He seeks federal habeas relief on the following grounds: (1) the instructional presentation for murder misled the jurors into believing that first and second degree murder could be conflated and this created a substantial possibility that the first degree murder verdict was not unanimous; (2) the felony murder rule should not apply to conspirators; (3) the trial court erred in instructing that conspiracy supported a felony-murder special circumstance; and (4) there was cumulative error. Upon careful consideration of the record and the applicable law, it is recommended that petitioner's application for habeas corpus relief be denied.

         I. Background

         In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

The murder victim, Kevin Prater, his girlfriend, and defendant Canseco had been friends since attending a high school in Tracy. In September 2010, the girlfriend (who had moved out of state) was visiting her local family and the victim. She was the primary eyewitness to the crimes.
A few days before the events underlying the convictions, the three had gone out for fast food. During the hour or so that they spent together, the girlfriend did not sense anything out of the ordinary about defendant Canseco's behavior. In the early evening on September 15, the girlfriend and the victim were watching television at his mother's home. Defendant Canseco kept trying to call the victim, who at first was ignoring the calls. The victim eventually answered and spoke with defendant Canseco, then told the girlfriend that they were going to go pick him up (a courtesy they often offered each other).
The victim was wearing a large amount of expensive jewelry, including a gold watch, diamond earrings, a gold chain, a three-diamond ring, a diamond tennis bracelet, and a detachable gold crown cap over his top front teeth. The total estimated value was about $3, 000. In the car's console were an imitation Rolex and his mother's broken gold nugget tennis bracelet (the estimated value of the latter was $3, 495), which she had given to him a couple of weeks earlier to get fixed.
The victim drove to a cul-de-sac west of Tracy Boulevard bordered on the south side by train tracks, which were fenced off (although there was an opening cut in the fencing), and on the north side by houses. Oleanders grew along the fence. The location was not well illuminated. Defendant Canseco was standing in the road near the shrubbery. The girlfriend testified that she and the victim had remarked “it looked like he on something.” As defendant Canseco was wearing a black hooded sweatshirt over his red hat and shirt, getting picked up in the middle of nowhere and looking ill at ease, she thought he also looked like he was up to something and being sneaky.
Defendant Canseco got into the back seat and started texting. The girlfriend wanted to go to the grocery store to get a snack, but defendant Canseco asked them first to drive to a house on Beechnut Street, which was on the south side of the train tracks near Alden Park. This was near the other side of the opening in the fence. Defendant Canseco briefly went inside while the others waited.
On his return, they drove to the store, which was less than five minutes away. Defendant Canseco continued texting on his phone. The girlfriend went in to get her snack. When she came back, defendant Canseco asked them to return to the cul-de-sac to get “something” from a friend. When they arrived, defendant Mendoza was standing about where defendant Canseco had been. He got in the back seat behind the girlfriend. The girlfriend testified that he had looked familiar to her when he got into the car, and she thought he may have attended high school with them.
Less than a minute later a tall and slender man dressed in dark clothing and wearing a mask, suddenly appeared at the driver's window with a long gun and demanded the victim's property. He was loud and aggressive. The victim turned to defendant Canseco and asked angrily if this was “what you on” (the girlfriend interpreting his remark for the jury as meaning that he could not believe defendant Canseco had set him up). Defendant Canseco did not respond. The victim began tussling with the stranger for control of the weapon. Both defendants started trying to restrain him from the back seat. The girlfriend was in the process of escaping from the car when she heard a single shot, and ducked into some nearby oleander bushes. Both defendants and the shooter ran off through the opening in the fence.
The victim hit the gas pedal with his foot and the car drove off down the cul-de-sac to Tracy Boulevard, where it crashed. He died from a gunshot wound that appeared unremarkable on the surface but resulted in “explosive” internal injuries, indicating it was likely a high-velocity bullet fired from a rifle.
The girlfriend, who had hidden to make sure the other men were gone, ran down the street to the car. A police officer who had been patrolling nearby was already there, arriving a minute after a 911 call at 9:01 p.m. Within minutes, other police officers arrived at the scene. The girlfriend told them about the attempted robbery and gave them defendant Canseco's name. She later identified defendant Mendoza in a photographic lineup.
Two residents of the cul-de-sac also testified about their observations that night. The details vary somewhat from the girlfriend's. As the girlfriend's testimony otherwise is substantial evidence of the circumstances of the offenses, we omit a summary of these other witnesses because they do not add anything material.
Defendant Canseco was arrested the following evening when the police stopped a car in which he was travelling. The police obtained a warrant for defendant Mendoza's arrest a few days later after his identification. He was eventually captured in Cuidad Juarez, Mexico, in October 2011.
As noted above, there was an exhibit of texts to and from defendant Canseco on the evening of September 15, 2010. Between 8:00 and 9:00 p.m., in addition to texts between the victim and Canseco, there were a number sent between Canseco (area code 510) and Mendoza (area code 209), and Canseco and a person nicknamed Taz5 (area code 925). In response to Taz's query, Canseco said he was at a park (Alden) on Palm Circle at 8:10 p.m., a street running south from Beechnut Street near the fence opening. Taz said he would walk there. At 8:35 p.m., defendant Canseco told Mendoza to start walking and told Taz at 8:38 p.m. to act as a lookout. At 8:40 p.m., Canseco told Mendoza “he” (i.e., the victim) was trying to leave and that they would be heading to Beechnut Street. At 8:43 p.m., Canseco told Mendoza to go down Beechnut away from Tracy, and then a minute later told him to go back to the cul-de-sac. Mendoza told Canseco to act as if he was picking up a “bag” (presumably of marijuana) from him. At 8:47 p.m. and 8:48 p.m., Canseco told Mendoza that he would be right back after they stopped at the grocery store. (At the same time, the victim sent his final text, asking where defendant Canseco was.) At 8:51 p.m., Taz asked if “he” was armed; Canseco assured Taz “he” was not, and let Taz know that “he” was wearing a gold crown front cap. At 8:54 p.m. and 8:55 p.m., Canseco said they were on the way and told Mendoza to be ready. Mendoza asked if Canseco had said he was getting marijuana; Canseco answered in the affirmative. Canseco asked Mendoza if he should stay in the car when picking up the marijuana or get out. At 8:58 p.m., Mendoza told him to stay in the car, and said he was going to be at the corner. As noted, the 911 call occurred at 9:01 p.m.
Defendant Canseco had called his brother later that evening and told him to move ammunition from defendant Canseco's room to the brother's room, and to leave the front door unlocked. The brother knew that the ammunition was for a sawed-off rifle that defendant Canseco owned. Defendant Canseco had sent pictures to his girlfriend of himself and his brother showing Canseco holding a rifle. In a search of the Canseco home on the morning after the shooting, police retrieved the ammunition from the brother's room and a scope in defendant Canseco's room. These were compatible with the model of the rifle he appeared to be holding in the photographs, and a fragment retrieved from the victim was a base of a bullet of the same size as the ammunition. This ammunition usually inflicted wounds similar to the victim's.

People v. Mendoza, No. C071775, 2014 WL 2466565, at *1-3 (Cal.Ct.App. June 3, 2014), review denied (Aug. 27, 2014).

         II. Standards of Review Applicable to Habeas Corpus Claims

          An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.

         For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34, (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567 U.S. 37, 49 (2012) (per curiam)). Nor may it be used to ‚Äúdetermine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if ...


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