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Mendez v. Baughman

United States District Court, E.D. California

April 4, 2018

DAVID BAUGHMAN, Warden Respondent.



         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. David Baughman, Acting Warden of California State Prison, Sacramento, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Tami M. Krenzen of the Attorney General's Office for the State of California.

         The petition raises the following claims: (1) the trial court erred in denying Petitioner's Wheeler/Batson motion; (2) the jury did not render an unequivocal verdict of guilt on Count 3; (3) the trial court abused its discretion by denying Petitioner's request for release of juror identifying information; (4) trial counsel was ineffective in failing to request instructions on conspiracy to be an accessory after the fact; (5) in light of the equivocal verdict on Count 3, the firearm enhancement must be stricken; (6) the trial court erred in failing to clarify the verdict or further instruct the jury; (7) Petitioner was improperly convicted of two counts of being an accessory; and (8) the gang enhancement must be stricken.[1] (ECF No. 1.)

         For the reasons stated below, the undersigned will recommend that the petition be granted

         I. Procedural History

         Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Merced. He was initially convicted of conspiracy to commit murder and two counts of accessory after the fact, with gang and firearm enhancements. People v. Mendez, No. F063497, 2013 WL 4830803, at *1-2 (Cal.Ct.App. Sept. 10, 2013). He was sentenced to an indeterminate term of 25 years to life, enhanced by a term of 25 years to life due to the firearm allegation. Id. at *2.

         Petitioner appealed his conviction and sentence (Lodged Doc. 2) and, on September 10, 2013, the California Court of Appeal for the Fifth Appellate District reversed one of the accessory counts, vacated a gang enhancement, and otherwise affirmed the judgment (Lodged Doc. 1). Mendez, 2013 WL 4830803, at *23. Petitioner filed a petition for review with the California Supreme Court. (Lodged Doc. 5.) On November 26, 2013, the California Supreme Court denied the petition. (Lodged Doc. 6.)

         Petitioner did not file any state habeas petitions.

         Petitioner filed the instant federal habeas petition on October 8, 2014. (ECF No. 1.) Respondent filed an answer to the petition on May 1, 2015. (ECF No. 20.) Petitioner filed a traverse on July 10, 2015. (ECF No. 24; see also ECF No. 27.) The matter stands ready for adjudication.

         II. Factual Background

         The following facts are taken from the Fifth District Court of Appeal's September 10, 2013, opinion and are presumed correct. 28 U.S.C. § 2254(e)(1).

On the night of the shooting, DeAngelo and J.S. were sitting on a bench in an apartment complex near a basketball court. They were approached by three armed Hispanic males. Shots were fired, resulting in the death of DeAngelo. J.S. survived, despite being shot twice. The prosecution presented evidence suggesting the shooting was gang related, although neither DeAngelo nor J.S. was a gang member.
A witness, who went to high school with Mendez, identified Mendez as the driver of the vehicle that transported the shooters to and from the apartment complex. Mendez was arrested that night and gave the police a statement admitting his involvement in the shooting. We will summarize Mendez's statement, which was played for the jury, to explain his defense and the basis for his claimed inability to identify the shooters.
Mendez initially claimed he did not know why he was being interrogated and that he was at home asleep at the time of the shootings (10:00 p.m. to 11:00 p.m.). He denied driving the vehicle used to transport the shooters that night. He denied being at the scene, even after being told a witness had identified him and the vehicle he was driving.
A search of Mendez's home resulted in the discovery of the guns used in the shooting being found under Mendez's bed. Mendez's story quickly changed. Mendez said he received a call asking if he could give the caller a ride. The caller, whom Mendez stated he did not know, said that Fire had told him to call Mendez for a ride. Mendez knew Fire from a high school he attended for a short while.
Mendez picked up Fire, the caller, and a third man near a store. Fire first stated the three were going to a party, but then asked Mendez to stop at the apartment complex. When the three men exited the vehicle, they used their shirts to cover their faces, except for their eyes. Mendez waited about 10 minutes. He heard approximately five gunshots and then the three men came running out of the complex. They told Mendez to “just go, just go.” Mendez drove to a park. The three men said there were two Black guys at the apartment complex. An argument started and shots were fired. The three men told Mendez to hide the guns-two pistols and a shotgun. Mendez claimed he did not know any of the three men except for Fire.
Mendez dropped off the three at the same store at which he had picked them up and then dropped off the guns at his house. After Mendez got home, a different friend called for a ride. Mendez did not want to take the truck because it had been used in the shooting, so he took his brother's car.
The prosecution contended Mendez was guilty as an aider and abettor to the murder of DeAngelo and the attempted murder of J.S., and that Mendez conspired with the shooters to commit the crime. Mendez argued he was merely giving a friend a ride and did not know the three men were going to shoot anyone that night. He acknowledged that his actions after the shooting would make him guilty of being an accessory after the fact, in violation of section 32, but asserted he was not guilty of the three charged crimes.

Mendez, 2013 WL 4830803, at *1-2.

         III. Jurisdiction and Venue

         Relief by way of a writ of habeas corpus extends to a prisoner under a judgment of a state court if the custody violates the Constitution, 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 n.7 (2000). Petitioner asserts that he suffered a violation of his rights as guaranteed by the U.S. Constitution. Petitioner was convicted and sentenced in this district. 28 U.S.C. § 2241(d); 2254(a). The Court concludes that it has jurisdiction over the action and that venue is proper.

         IV. Applicable Law

         The petition was filed after April 24, 1996 and is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if 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).

         A. Standard of Review

         A state court decision is “contrary to” federal law if it “applies a rule that contradicts governing law set forth in [Supreme Court] cases” or “confronts a set of facts that are materially indistinguishable from” a Supreme Court case, yet reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-06). “AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that even a general standard may be applied in an unreasonable manner” Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The “clearly established Federal law” requirement “does not demand more than a ‘principle' or ‘general standard.'” Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003).

         A state court decision will involve an “unreasonable application of” federal law only if it is “objectively unreasonable.” Id. at 75-76 (quoting Williams, 529 U.S. at 409-10); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Harrington v. Richter 562 U.S. 86, 101 (2011) (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Id. (citing Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)). Further, “[t]he more general the rule, the more leeway courts have in reading outcomes in case-by-case determinations.” Id.; Renico v. Lett, 130 S.Ct. 1855, 1864 (2010). “It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme Court].” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).

         B. Requirement of Prejudicial Error

         In general, habeas relief may only be granted if the constitutional error complained of was prejudicial. That is, it must have had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require a showing of prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659 (1984). Furthermore, claims alleging ineffective assistance of counsel are analyzed under the Strickland prejudice standard; courts do not engage in a separate analysis applying the Brecht standard. Strickland v. Washington, 466 U.S. 668 (1984); Avila v. Galaza, 297 F.3d 911, 918, n.7 (2002); Musalin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009).

         C. Deference to State Court Decisions

         “[S]tate courts are the principal forum for asserting constitutional challenges to state convictions, ” not merely a “preliminary step for a later federal habeas proceeding.” Richter, 562 U.S. at 103. Whether the state court decision is reasoned and explained, or merely a summary denial, the approach to evaluating unreasonableness under § 2254(d) is the same: “Under § 2254(d), a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; 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. In other words:

As a condition for obtaining habeas corpus relief 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.

Id. at 103. Thus, the Court may issue the writ only “in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents.” Id. at 102.

         “Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest on the same grounds.” See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Thus, the court will “look through” a summary denial to the last reasoned decision of the state court. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). Furthermore, the district court may review a habeas claim, even where the state court's reasoning is entirely unexplained. Richter, 562 U.S. at 98. “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.” Id. (“This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.'”).

         V. Review of Petition

         A. Claim One: Discrimination in Jury Selection

         Petitioner contends that the prosecutor exercised peremptory challenges in a discriminatory manner that removed four Hispanic jurors, and that the trial court improperly denied Petitioner's Batson motion challenging the prospective jurors' removal.

         1. State Court Decision

         Because the California Supreme Court's opinion is summary in nature, this Court "looks through" that decision and presumes it adopted the reasoning of the California Court of Appeal, the last state court to have issued a reasoned opinion. See Ylst, 501 U.S. at 804-05. Additionally, to the extent that the California Court of Appeal's decision “adopts or substantially incorporates the reasoning from a previous state court decision, we may consider both decisions to ‘fully ascertain the reasoning of the last decision.'” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007).

         In ruling on this claim, the Fifth District Court of Appeals explained:

Mendez made two motions for a mistrial based on the prosecutor's exercise of peremptory challenges. The first motion was made after the prosecutor exercised his first two peremptory challenges to Prospective Jurors Nos. 1399 and 5225. The second motion was made after the prosecutor exercised a total of 11 peremptory challenges, including Prospective Jurors Nos. 3307 and 4454.
The primary ground for Mendez's motions was the fact that each of the challenged potential jurors was Hispanic. After each motion the trial court found Mendez had made a prima facie showing the prosecutor was exercising his peremptory challenges in a discriminatory manner. After the prosecutor explained his reasons for the use of the peremptory challenges, the trial court found there were nondiscriminatory reasons for the prosecutor's challenges and denied the motions. Mendez argues the trial court's ruling was erroneous.

         A. The Law

The California Supreme Court recently set forth the applicable legal standards when a Batson/Wheeler motion is made.
“A prosecutor's use of peremptory challenges to excuse prospective jurors on the basis of group bias, including on grounds of race or ethnicity, violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. [Citations.] Under Batson, supra, 476 U.S. 79, such practice also violates the defendant's right to equal protection under the Fourteenth Amendment. [Citations.]
“‘In ruling on a motion challenging the exercise of peremptory strikes, the trial court follows a three-step procedure. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citation.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]” [Citation.]' [Citation.]
“‘A prosecutor asked to explain his conduct must provide a “‘clear and reasonably specific' explanation of his ‘legitimate reasons' for exercising the challenges.” [Citation.] “The justification need not support a challenge for cause, and even a ‘trivial reason, ' if genuine and neutral, will suffice.” A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.' [Citation.] ‘[B]ut race-based decisions are not constitutionally tolerable.' [Citations.]
“Therefore, ‘at the third stage of the Wheeler/Batson inquiry, “the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. [Citation.]' [Citations.]
“‘“Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges “‘with great restraint.'” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]'” [Citation.]' [Citation.]
“‘“‘The trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor's race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.'”' [Citation.] ‘“‘All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.' [Citation.] A reason that makes no sense is nonetheless ‘sincere and legitimate' as long as it does not deny equal protection. [Citation.]” [Citation.]' [Citation.]
“‘“As part of our analysis, we consider as ‘bearing on the trial court's factual finding regarding discriminatory intent' [citation] the comparisons of prospective jurors challenged and unchallenged that defendant expounds in his briefs, though few if any of these comparisons were made in the trial court. At the same time, ‘we are mindful that comparative juror analysis on a cold appellate record has inherent limitations.' In addition to the difficulty of assessing tone, expression and gesture from the written transcript of voir dire, we attempt to keep in mind the fluid character of the jury selection process and the complexity of the balance involved. ‘Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court's factual finding.' [Citation.]” [Citation.]' [Citation.]” (People v. DeHoyos (2013) 57 Cal.4th 79, 101-103.)

         B. Motion No. 1

The first motion was made after the prosecutor exercised his first two peremptory challenges on Prospective Jurors Nos. 1399 and 5225. We begin by reviewing the proceedings leading up to these two challenges.

         The Jury Questionnaire

Each potential juror was presented with a jury questionnaire to complete several days before jury selection began.

         Prospective Juror No. 1399

Prospective Juror No. 1399 was a retired 69-year-old married male who lived at home with his wife. He has seven grown children. He stated he graduated from high school but did not attend college, had not served in the military, denied past jury service, had been arrested for solicitation and apparently sustained a conviction of some type, and had a nephew who was “run over” by a drunk driver and a cousin and a brother-in-law who were murdered; he also stated he had been the victim of auto theft. He testified as a character witness for a coworker who had been charged with murder. He denied hearing about the case in the media and denied any negative feelings towards law enforcement. He strongly disagreed with the statement that “The courts are trustworthy, ” and stated that a person who acted as a lookout for a burglar should be just as liable as the burglar if the two planned the crime together. However, he felt a getaway driver would not be as guilty as the person who stabbed a victim unless the driver could have stopped the crime.

         Prospective Juror No. 5225

Prospective Juror No. 5225 was a 34-year-old mother of six children who was employed as a family service representative. She had graduated from high school and attended college, during which time she was enrolled in several criminal justice classes. She denied any past jury experience. Her brother, son, and ex-husband had been charged with crimes, although the types of crimes were not stated. She stated she had been the victim of domestic violence at the hands of her ex-husband, which probably resulted in charges against him. He shot at her and threatened her with a gun several times. She also testified in her cousin's case when he apparently was charged with sexual assault.
She had seen some information in the media about the case, and one of her nephews stated he knew the victim from high school. The information made her sad. Her brother had a tattoo on his forearm that read “M St. Mob.” She experienced migraine headaches and indicated they might make it difficult for her to serve on the jury, although she had medication for the condition.
She acknowledged that a lookout or a getaway driver could be liable for the crime committed by another perpetrator, depending on the circumstances involved.

         Voir Dire

The trial court began voir dire by asking all potential jurors in the jury box general questions about their ability to serve as jurors. In addition, the parties were permitted limited voir dire.[FN3]
FN3: Each party was given 30 minutes to voir dire the initial 27 potential jurors called to the jury box. For cause and peremptory challenges were then exercised until only 11 potential jurors were left in the jury box. The trial court then called 16 additional potential jurors from the panel. Each party was then given 15 minutes to conduct voir dire on any of the 27 potential jurors now in the jury box. This process was repeated until a jury was selected.

         Prospective Juror No. 1399

Prospective Juror No. 1399 did not respond to any of the trial court's questions. The prosecutor began voir dire by asking general questions of the entire panel about witnesses. He specifically asked Prospective Juror No. 1399 how he would determine whether a witness was believable. Prospective Juror No. 1399 responded that he would base his analysis on past experiences in interacting with people. That was the only question asked of this prospective juror by either attorney.

         Prospective Juror No. 5225

Prospective Juror No. 5225 responded to two questions posed by the trial court. First, she indicated that one of the police officers, who was a potential witness in the trial, had been a friend of her husband's for a long time. She denied the relationship would have any effect on her ability to be impartial.
She also explained that she knew the district attorney because their sons were friends. She again denied that the relationship would have any effect on her ability to be impartial.
Neither attorney asked Prospective Juror No. 5225 any questions on voir dire.

         The Prosecutor's Justification for the Peremptory Challenges

The prosecutor's explanation for his decision to exercise a peremptory challenge was somewhat disjointed. It appears that someone in the district attorney's office had reviewed the jury questionnaires before jury selection began and had given each questionnaire a “grade, ” which indicated the desirability of that particular juror serving on the panel. It also appears that the prosecutor trying the case did not grade the questionnaires and based his decision whether to accept or reject a juror largely on the grades given to the questionnaires.
While the use of such a grading system does not necessarily violate any of Mendez's constitutional rights, a constitutional violation would occur if the grades were based on race. The record, however, does not contain any evidence on how the grades were assigned; therefore, we have no basis to conclude the grading system violated Mendez's constitutional rights.
Because we do not know on what criteria the grading system was based, we must base our review solely on the various reasons identified by the prosecutor for the challenges. The prosecutor noted that Prospective Juror No. 1399 stated on his questionnaire that he had been convicted of misdemeanor solicitation, the questionnaire was full of misspellings, and the prospective juror stated he had testified as a character witness for a defendant accused of murder. The prospective juror also strongly disagreed with the statement that the courts were trustworthy. Finally, he indicated he did not feel accomplices should be punished the same as a perpetrator.
The prosecutor noted that Prospective Juror No. 5225 stated she had taken some criminal justice classes, which caused the prosecutor concern because such jurors sometimes make decisions based on what they think the law is rather than the law given to them by the trial court. Prospective Juror No. 5225 also stated she would not have any problem deciding the case because of her religious beliefs, but she might not be able to impose the death penalty because of those beliefs. The prosecutor explained that this caused concern that the prospective juror might make decisions on her religious beliefs and not the law. The prospective juror also said that her brother, son, and ex-husband had been charged with crimes, causing concern about bias against law enforcement. The prospective juror also had been a victim of domestic violence and had been a witness in her cousin's sexual assault case, both of which caused the prosecutor concern. Finally, the prospective juror's brother apparently was in a gang, since he had a gang tattoo on his arm and this gang tattoo was for the same gang involved in this case.

         The Trial Court's Ruling

The trial court found there were race-neutral reasons for the prosecutor's exercise of the peremptory challenges and denied the motion with little explanation.


We agree with the trial court's conclusion. The voir dire did not provide any useful information for either attorney, so the decision to exercise peremptory challenges was based almost entirely on the jury questionnaires, which supported for the most part the prosecutor's justifications for the challenges. Prospective Juror No. 1399 stated in his questionnaire that he had been arrested for solicitation, had testified as a character witness for a coworker charged with murder, did not feel the trial courts were trustworthy, and did not feel an accomplice should be as liable as the perpetrator. These were all race-neutral reasons for exercising a peremptory challenge.
Prospective Juror No. 5225's questionnaire also supported the prosecution's justifications. She stated in her questionnaire that her brother had a gang tattoo, a strong indication he was in a criminal street gang. She also stated several relatives had been charged with crimes, her religious views would interfere with her ability to impose the death penalty, and she had taken several criminal justice classes. Each of these reasons was race-neutral and supported the trial court's ruling.

         C. Motion No. 2

The second motion was made after the potential jurors excused from the panel were replaced with new potential jurors from the venire. Both sides exercised numerous peremptory challenges. Mendez made the second motion after the prosecutor exercised his ninth challenge against Prospective Juror No. 3307. Mendez asserted the ninth peremptory challenge and the sixth peremptory challenge used against Prospective Juror No. 4454 were based on race.

         The Jury Questionnaire

         Prospective Juror No. 3307

Prospective Juror No. 3307 was a 33-year-old single Hispanic female with three children. She had graduated from college and vocational school. She had never served on a jury. Neither she nor a family member had ever been charged with a crime, nor had she been a victim of a crime other than when someone broke into her house.
She had not heard anything about the case from media reports.
She “Somewhat Disagree[d]” that police and the courts are trustworthy. She would judge police officer testimony the same as any other witness. She denied any gang knowledge ...

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