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Ramirez v. Pfeiffer

United States District Court, S.D. California

August 30, 2019

URIEL RAMIREZ, Petitioner,
CHRISTIAN PFEIFFER, Warden, et al., Respondents.




         Petitioner Uriel Ramirez, a state prisoner proceeding with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”), challenges his convictions for kidnapping during a carjacking and evading a peace officer, as well as true findings on firearm use and gang enhancements. The Court has read and considered the Petition [ECF No. 1], the Answer and Memorandum of Points and Authorities in Support of the Answer [ECF Nos. 11, 11-1], the lodgments and other documents filed in this case, and the legal arguments presented by both parties.[1] For the reasons discussed below, the Court DENIES the Petition.


         This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The state appellate recounted the facts as follows:

At about 10:00 a.m. on September 1, 2014, 17-year-old J.A. was sitting in his 2003 Honda Accord in the parking lot of the Buena Creek Transit Center in Vista waiting for his girlfriend. J.A. saw a male, later identified as defendant, milling around the parking lot. Defendant was wearing black or blue shorts, a blue shirt, long knee socks, and football gloves. He drew J.A.'s attention because this is the type of clothing “somebody with gang affiliation wears.” J.A. knew this because, although he was not a gang member, he grew up around people he “thought were involved in gangs.”
As J.A. opened his car door to stretch, defendant approached and asked for a ride. J.A. responded, “No, I can't.” Defendant replied, “It's fine, ” and began walking away. J.A. returned to what he was doing.
About five seconds later, defendant returned and angrily told J.A. to give him the car. Defendant appeared to be high on drugs. He had one hand under his long t-shirt, near his waistband; J.A. could see “an outline of what looked like a rectangle.” Defendant told J.A. that if he did not give him the car, he would kill him. J.A., who had worked hard to save up money to buy the car, said no. Defendant pulled a black handgun from under his shirt, pointed it at J.A.'s head, and said, “‘Do you know where you are? This is my hood.'” J.A. construed this as a threat that he was “in the wrong part of town.” Defendant again angrily demanded J.A.'s car. Not wanting to lose his car, and fearful that defendant would “shoot [him] right there” in the parking lot even if he surrendered it, J.A. instead offered to give defendant a ride. Defendant declined. J.A. said, “Come on. Just let me give you a ride.” J.A. was scared and shaking. Defendant agreed and walked around the front of the car, concealing the handgun under his shirt. J.A. thought about trying to escape, but “didn't want to get shot at.” Defendant got in the front passenger seat, placed the gun on his lap, and pointed it at J.A's chest. J.A. asked, “Where to?” Defendant responded, “Just drive.” J.A. drove the car out of the parking lot and headed north. J.A.'s girlfriend arrived in time to see them drive off, which struck her as unusual.
As they drove, defendant told J.A., “I'm from San Marcos.” J.A. understood this to mean that defendant “represents” San Marcos or claims it as his “hood, ” not merely that “Oh, that's where he lived.” J.A. observed that defendant had “San Marcos” tattooed on his upper lip, and the letter “E” tattooed on his neck. Defendant said his name was “Shadow” (or something similar), that he was “on the run, ” and that “they” were searching his apartment. As J.A. drove, defendant played with the gun, ejecting the magazine. J.A. could see the bullets. Defendant warned, “I still have one in the chamber. I could kill you now.” J.A. did not try to get anyone's attention because he was afraid of being shot.
After about eight minutes of driving on a main street (Santa Fe Road), Defendant told J.A. to turn onto a residential side street (Nevada Street). J.A. refused, afraid defendant might be “tak[ing] [him] somewhere worse, ” in “that he could have other, like, friends there.” J.A. offered to drop off defendant, and, with the gun still pointed at him, pulled to the curb and stopped. Defendant responded, “I'm taking the car then.” J.A. acquiesced. As J.A. exited the car, defendant leaned over, pushed J.A. out, and drove off heading north. J.A., still afraid that defendant might shoot him, ran south. About two minutes later, J.A. saw defendant drive by fast, roll down the window and point his gun at J.A.
A college student who saw the car driving erratically and saw J.A. running followed J.A. to offer assistance. The student caught up with J.A. and gave him a ride back to the transit center. J.A., shaking and trembling, told the student what had happened. J.A. called 911, and a recording of his call was played for the jury. Later that day, J.A. selected defendant's photo in a six-pack photo array.
In the meantime, defendant led law enforcement on a high-speed chase that involved a helicopter and a canine unit. [FN 2: Defendant conceded the reckless evasion count at trial and does not challenge it on appeal. We therefore discuss it only as it relates to his appellate claims on other counts.] After crashing J.A.'s car, defendant fled on foot and sent a text message to Jorge Adame asking to pick him up. Adame picked up defendant and dropped him off at a girl's house. [FN 3 omitted.]
The next day, law enforcement had defendant under surveillance at a restaurant in Oceanside. An FBI agent assigned to the North County Regional Gang Task Force walked past defendant to confirm his identity. As he did, the agent heard defendant “telling [a] story to [another] Hispanic male, ” explaining he was “running, ” “[t]hey were everywhere, ” and the “bird was up.” As he talked, defendant made a gesture with his hands as if he were holding a gun. Defendant was arrested without incident. Law enforcement did not recover a gun from defendant or J.A.'s car.
Investigators collected forensic evidence. Security camera footage showed defendant was in the transit center parking lot the morning of September 1. Text messages from around that day were extracted from defendant's cell phone. In one message, defendant referred to himself as “Grims” and requested a ride. Outgoing texts from later that evening read: “Just got away 4-R-M [from] the cops, ” “I almost got busted today, ” and “today I thought I would neva get to see you again. Honestly I was feeling hella down when the ghetto bird was on me.”
Detective Jeff Creighton of the San Diego Sheriff's Department testified at trial as the prosecution's gang expert. He testified defendant was a member of Varrio San Marcos (VSM), one of the two main Hispanic street gangs in San Marcos. When asked a hypothetical question based on facts mirroring the evidence elicited in the prosecution's case, Detective Creighton opined that the hypothetical actor's conduct would benefit and promote the VSM gang. We discuss Detective Creighton's testimony in more detail in part III, post.

         The Defense Case

Defendant was the sole defense witness. He had been “interested and attracted to the gang lifestyle” since elementary school, and admitting to joining VSM when he was 18 or 19. He was 22 at the time of the offense and had been released from custody just two weeks earlier. [FN 4 omitted.]
On September 1, defendant was at the transit center returning to his aunt's house after having spent the night with an ex-girlfriend. He had been smoking marijuana when he saw J.A. pull into the parking lot. Defendant thought he knew J.A., so he approached. When defendant got close enough to J.A.'s open car door to realize he did not know J.A., defendant said, “My bad. I thought you were one of my friends.” J.A., who did not know defendant, then said, “Dude, you're fucking high, ” and asked, “Where's it at?”, which defendant characterized as “a slang term that, like, he wanted some bud.” Defendant had marijuana in his possession, but did not want to come across to J.A. as the type of person who sells marijuana. Therefore, he told J.A. he did not have any, but had a friend who lived nearby who would sell him some. Defendant planned to ultimately sell J.A. the marijuana himself. J.A. then offered defendant a ride to the friend's house to conduct the transaction. Defendant got in J.A.'s car “[v]oluntarily, ” and they drove north. Defendant insisted he was not carrying a gun, and didn't even own one around that time.
As they drove, defendant “pretty much introduced [him]self, like [he] always [does] to people.” He said he was from San Marcos, which was “obvious [ ]” because of the “label on [his] face.” And although his real gang moniker is “Grims, ” he told J.A. he goes by “Stranger.” J.A. told defendant he wanted to purchase “an eighth” of marijuana for $40. Defendant directed J.A. to pull over near Nevada Street, and asked for the money. When J.A. stopped the car and handed defendant the money, defendant “just grabbed it and . . . ran out.” J.A. exclaimed, “What the fuck?”, and chased defendant on foot.
Defendant - being “a very athletic person” - outran J.A., circled back to J.A.'s idling car, and drove it away. Defendant admitted he led law enforcement on a high-speed chase in the manner described by the prosecution witness. He also admitted he sent a text message while fleeing, asking to be picked up. He was picked up by two VSM members, and told them what had happened. He was arrested the following day.

(Lodgment No. 1, ECF No. 12-1 at 2-7.)


         On November 13, 2014, the San Diego District Attorney's Office filed a three-count information charging Uriel Alejandro Ramirez with one count of carjacking, a violation of California Penal Code § 215(a) (count one), one count of kidnaping during a carjacking, a violation of California Penal Code § 209.5(a) (count two), and one count of evading a peace officer with reckless driving, a violation of California Vehicle Code § 2800.2(a) (count three). (Lodgment No. 9, ECF No. 12-16 at 19-22.) As to counts one and two, the information alleged that Ramirez personally used a firearm, within the meaning of California Penal Code § 12022.53(b), and committed the offense for the benefit of a street gang with the intent to promote the gang, within the meaning of California Penal Code §§ 186.22(b)(4) (count one) and 186.22(b)(5) (count two). (Id.) Finally, the information alleged Ramirez had suffered three prior convictions which made him ineligible for probation, within the meaning of California Penal Code § 1203(e)(4), two prior convictions for which he had served a prison sentence, within the meaning of California Penal Code §§ 667.5(b) and 668, a prior serious felony conviction, within the meaning of California Penal Code §§ 667(a)(1), 668, and 1192.7(c), and a prior “strike” conviction, within the meaning of California Penal Code §§ 667(b) through (i), 1170.12, and 668. (Id.)

         Following a jury trial, Ramirez was convicted of counts two and three (count one was a lesser offense to count two); the jury also found the firearm and gang enhancements to be true for count two, kidnapping during a carjacking. (Id. at 126, 139-42.) Ramirez was sentenced to thirty years-to-life plus twenty-two years. (Id. at 186-88.)

         Ramirez appealed his conviction to the California Court of Appeal for the Fourth Appellate District. (Lodgment Nos. 4-6, ECF Nos. 12-4 - 12-6.) The state appellate court upheld Ramirez's conviction in a written opinion. (Lodgment No. 1, ECF No. 12-1.) Ramirez then filed a petition for review in the California Supreme Court. (Lodgment No. 7, ECF No. 12-7.) The California Supreme Court summarily denied the petition. (Lodgment No. 3, ECF No. 12-3.)

         Ramirez filed a Petition for Writ of Habeas Corpus in this Court on October 15, 2018. (ECF No. 1.) Respondent filed an Answer and Memorandum of Points and Authorities in Support of Answer on March 7, 2019. (ECF Nos. 11, 11-1.) Ramirez did not file a Traverse.


         Ramirez's Petition contains three claims. In claim one he contends that his federal due process right to a fair trial was violated when the trial judge failed to give additional jury instructions on the defense of consent. (Pet., ECF No. 1 at 6-11.) In claim two he argues trial counsel was ineffective for failing to ask for the additional jury instructions on consent. (Id. at 12-14.) And in claim three he contends there was insufficient evidence presented at trial to support the gang enhancement allegation. (Id. at 15-19.) Respondent argues that the state court's resolution of the claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer, ECF No. 11-1 at 11-27.)

         A. Standard of Review

         This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)-(2); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).

         A federal habeas court may grant relief under the “contrary to” clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the “unreasonable application” clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the “unreasonable application” clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The Court may also grant relief if the state court's decision was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).

         Where there is no reasoned decision from the state's highest court, the Court “looks through” to the last reasoned state court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not “furnish a basis for its reasoning, ” federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Clearly established federal law, for purposes of § 2254(d), means “the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Andrade, 538 U.S. at 72.

         B. Ground One: Jury Instructions

         In ground one, Ramirez contends the trial judge committed constitutional error when he failed to sufficiently instruct the jury on actual consent and on the defense of reasonable but mistaken consent. (Pet., ECF No. 1 at 6-11.) Ramirez raised this claim in the petition for review he filed in the California Supreme Court. (Lodgment No. 7, ECF No. 12-7 at 9-15.) The California Supreme Court summarily denied the petition, and thus this Court must “look through” to the state appellate court's opinion denying the claim as the basis for its analysis. Ylst, 501 U.S. at 805-06. That court wrote:

         1. Actual Consent

Defendant relied on an actual consent defense and, thus, was entitled to have the jury instructed on it. (Dominguez, supra, 39 Cal.4th at p. 1148; Andrade, supra, 238 Cal.App.4th at p. 1300.) We conclude the jury was, in fact, adequately instructed in this regard. First, regarding the kidnapping during a carjacking count, the court instructed the jury via CALCRIM No. 1204 that the People were required to prove J.A. “did not consent to the movement.” This expressly informed the jury of the consent concept and indicated the People bore the burden of disproving consent. Second, in connection with the lesser-included carjacking count, the court instructed the jury on the definition of “consent” with CALCRIM No. 1650: “An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act.” The court also instructed the jury to “[p]ay careful attention to all of these instructions and consider them together.” (CALCRIM No. 200, italics added; see Dieguez, supra, 89 Cal.App.4th at p. 276; Sanchez, supra, 26 Cal.4th at p. 852.) Considering the instructions as a whole, we conclude the jury was sufficiently instructed on the concept of actual consent. The fact the court did not also instruct the jury with CALCRIM No. 1204's bracketed paragraph - which the bench notes characterize as “[a]n optional paragraph” (italics added) - is thus of no moment. (CALCRIM No. 1204; Judicial Counsel of Cal., Crim. Jury Instns. (2016 ed.) Bench Notes to CALCRIM No. 1204, p. 956.)
Even if the trial court erred by not instructing the jury with CALCRIM No. 1204's optional language regarding actual consent, the error caused defendant no prejudice because the jury necessarily resolved the underlying factual predicate (whether J.A. accompanied defendant voluntarily or only because defendant threatened him with a gun) against defendant by making a true finding that he used a firearm during the commission of the carjacking. (See People v. Stewart (1976) 16 Cal.3d 133, 141 [“a failure to instruct where there is a duty to do so can be cured if it is shown that ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions'”].)

         2. Reasonable But Mistaken Belief in Consent

Defendant did not rely at trial on a Mayberry defense of reasonable but mistaken belief in consent. Thus, he was only entitled to have the jury instructed on the theory if it was supported by substantial evidence and was consistent with his defense theory. (Dominguez, supra, 39 Cal.4th at p. 1148; Andrade, supra, 238 Cal.App.4th at p. 1300.) Defendant has not cleared these hurdles.
“The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented . . . .In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent.” (People v. Williams (1992) 4 Cal.4th 354, 360-361 (Williams), fn. omitted.) Evidence of the defendant's state of mind may be circumstantial. (People v. Thomas (2011) 52 Cal.4th 336, 355.)
“In addition, the defendant must satisfy the objective component, which asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented . . ., that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction.” (Williams, supra, 4 Cal.4th at p. 361.) “[B]ecause the Mayberry instruction is premised on mistake of fact, the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (Id. at p. 362.)
In evaluating the objective component, the victim's conduct that the defendant claims “was equivocal must be viewed in the context of the circumstances surrounding the conduct he described.” (People v. Hernandez (2009) 180 Cal.App.4th 337, 345.) Thus, for example, in Hernandez, our court found it “unreasonable as a matter of law for [the defendant] to believe the victim consented to sexual intercourse” where, although defendant knew the victim from church, he broke into her home in the early hours of the morning carrying a two-foot long metal bar, told the victim he had killed a police ...

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