Opinion
Case No. CV 07-8390 DOC(JC)
08-30-2019
PABLO BASTIDAS, Petitioner, v. DEBRA DEXTER, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE DENYING GROUNDS ONE AND THREE (DOCKET NO. 45) AND DENYING MOTION TO STAY (DOCKET NO. 16), AND ALTERNATIVELY DENYING NEW/OTHER GROUNDS FOR RELIEF
I. SUMMARY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") and all of the records herein, including the October 26, 2011 Report and Recommendation of United States Magistrate Judge which addresses Grounds One and Three of the Petition (Docket No. 45) ("Merits R&R"), the January 11, 2010 Order Denying Petitioner's Motion to Stay (Docket No. 16) (alternatively, "Stay R&R") which the Court has construed to be a report and recommendation of United States Magistrate Judge in accordance with Bastidas v. Chappell, 791 F.3d 1155, 1164 (9th Cir. 2015), and the parties' objections thereto (Docket Nos. 47, 62, 64, 68, 71). The Court has /// made a de novo determination of those portions of the Merits R&R and the Stay R&R to which objection is made.
As detailed below, the Court concurs with and accepts the Magistrate Judge's findings and conclusions in the Merits R&R and the Stay R&R, denies the Motion to Stay, and overrules the parties' objections to the extent they are inconsistent with this Order. Further, and alternative to its concurrence with and acceptance of the Stay R&R, and assuming the case would have progressed differently had the Motion to Stay been granted and had petitioner's unadjudicated claims been considered on the merits, the Court denies such claims on the merits. Finally, the Court denies the Petition and dismisses this action with prejudice.
II. BACKGROUND
On December 28, 2007, petitioner Pablo Bastidas, a state prisoner who then was proceeding with the assistance of counsel, filed the Petition and a separate memorandum ("Petition Memo"). Petitioner challenged his 2002 conviction and sentence in Los Angeles County Superior Court Case No. BA240229 following a jury trial. The Petition originally asserted four claims for relief: (1) petitioner was denied his Sixth Amendment right to counsel because his trial attorney failed to investigate and present an alibi defense (Ground One); (2) petitioner was sentenced by the court to an upper term without aggravating factors being considered by the jury in violation of Cunningham v. California, 549 U.S. 270 (2007) (Ground Two); (3) the trial court failed to instruct the jury that a witness' prior conviction could be considered in determining the witness' credibility (Ground Three); and (4) there was insufficient evidence that petitioner used or discharged a firearm (Ground Four). (Petition at 5-6). Petitioner indicated that Grounds Two and Four had not been raised with the California Supreme Court when the Petition was filed. (Petition at 5-6).
On January 4, 2008, the Magistrate Judge ordered the parties to brief whether the Petition was barred by the statute of limitations. (Docket No. 4). The parties briefed the timeliness issue and lodged multiple documents in support thereof. (Docket Nos. 6-10).
On October 2, 2008, petitioner's counsel moved to withdraw as counsel of record. (Docket No. 11). On November 12, 2008, the Magistrate Judge granted counsel's motion to withdraw. (Docket No. 14).
On July 29, 2009, petitioner filed the Motion to Stay (Docket No. 15), seeking to stay and abey this action pending his exhaustion of an additional claim in the California courts, i.e., a claim that his constitutional rights were violated when the trial court erroneously "placed unadjudicated weapon enhancements consecutive to petitioner[']s accusatory charge after conviction of only the charged offense [California] Penal Code [section] 667(a)(1) enhancement" (the "new claim"). See Motion to Stay at 1. On January 11, 2010, the Magistrate Judge issued the Order Denying Petitioner's Motion to Stay (Docket No. 16) (since construed to be the Stay R&R), finding that a stay was not warranted under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), cert. denied, 538 U.S. 1042 (2003), because the new claim was not timely, or under Rhines v. Weber, 544 U.S. 269 (2005), because petitioner had not shown "good cause" for his failure to exhaust his new claim first in state court and again, because it was untimely.
On January 11, 2010, the Magistrate Judge also issued an order directing further briefing, requiring respondent to file an answer addressing the merits of the Petition. (Docket No. 17). On March 10, 2010, respondent filed an application for leave to file a motion to dismiss and a motion to dismiss the Petition, arguing that Grounds Two and Four were unexhausted, and lodged multiple documents. (Docket Nos. 20, 22-23). On March 19, 2010, petitioner filed a "Notice of Withdrawal of Second and Fourth Claim[s] from Petition." (Docket No. 24). In light of petitioner's notice of withdrawal, on March 30, 2010, the Magistrate Judge denied respondent's application for leave to file a motion to dismiss and struck the motion to dismiss. (Docket No. 25).
On May 13, 2010, respondent filed an answer addressing the merits of the two remaining claims in the Petition (Grounds One and Three) and arguing that the Petition was time-barred. (Docket No. 32). Respondent lodged multiple documents in support of the answer including the Clerk's Transcript ("CT") and the Reporter's Transcript ("RT"). (Docket Nos. 33, 39). On July 21, 2010, petitioner filed a Traverse.
Aside from the Clerk's Transcript and the Reporter's Transcript, the Court herein refers to the documents respondent lodged on January 31, 2008, March 10, 2010, May 13, 2010, June 18, 2010, and September 3, 2015 as the "Lodged Docs." See Docket Nos. 7, 23, 33, 39, 63 (notices of lodging).
On October 26, 2011, the Magistrate Judge issued the Merits R&R recommending that the then remaining grounds in the Petition - Grounds One and Three - be denied on the merits and that this action be dismissed with prejudice. (Docket No. 45). Because petitioner's claims failed on the merits, the Magistrate Judge declined to address whether the Petition was time-barred. See Merits R&R at 7 n.6. On November 7, 2011, petitioner filed objections to the Merits R&R. (Docket No. 47). On November 30, 2011, the previously assigned District Judge issued an order accepting the Merits R&R, overruling the objections thereto, denying the Petition, and dismissing the action with prejudice. (Docket No. 48). Judgment was thereafter entered accordingly. (Docket No. 49).
Petitioner appealed to the Ninth Circuit. (Docket No. 51). On July 1, 2015, the Ninth Circuit vacated the judgment and remanded the matter for further proceedings, finding that the Magistrate Judge lacked authority to issue the Order Denying Petitioner's Motion to Stay. See Bastidas v. Chappell, 791 F.3d at 1164. The Ninth Circuit instructed:
The court should determine de novo whether a stay was warranted with regard to the new claim at the time Bastidas made his motion, and may consider the magistrate judge's order as a report and
recommendation, along with any objections from the parties. If a stay was warranted, the court should decide "[t]he pertinent question": "Would the case have progressed differently [regarding that claim] had a stay been granted, and, if so, how?"Id. (quoting Mitchell v. Valenzuela, 791 F.3d 1166, 1173-74 (9th Cir. 2015)). On July 24, 2015, the Ninth Circuit issued the mandate. (Docket No. 58). On July 30, 2015, petitioner's appointed counsel filed a notice of appearance for petitioner. (Docket No. 59).
On August 6, 2015, the previously assigned District Judge referred the matter to the Magistrate Judge. (Docket No. 60). On August 14, 2015, the Magistrate Judge issued an order deeming the Order Denying Petitioner's Motion to Stay a report and recommendation and affording the parties an opportunity to file objections. (Docket No. 61). On September 3, 2015, respondent filed objections to the Order Denying Petitioner's Motion to Stay/the Stay R&R ("Respondent's Objections") and lodged multiple documents. (Docket Nos. 62-63). On September 3, 2015, petitioner filed objections with attachments ("Petitioner's Objections"). (Docket No. 64). On September 17, 2015, petitioner filed a response to Respondent's Objections with attachments ("Petitioner's Response"). (Docket No. 68). On November 16, 2015, respondent filed a reply to Petitioner's Objections ("Respondent's Reply"). (Docket No. 71). On April 18, 2017, petitioner filed a notice of supplemental authority. (Docket No. 72). The matter was thereafter reassigned to this Court. (Docket No. 73).
III. STATE AND RELATED PROCEDURAL HISTORY
On August 23, 2002, after a joint trial with co-defendant Wilmer Alberto, a Los Angeles County Superior Court jury returned verdicts finding petitioner guilty of four counts of robbery, three counts of possession of a firearm by a felon, and one count of assault with a firearm. (CT 250-54, 256-58; RT 2407-13). The jury also found true multiple firearm enhancement allegations. (CT 250, 252-53, 256- 57; RT 2407-13). The jury acquitted petitioner of attempted murder. (CT 255; RT 2413-14). The trial court sentenced petitioner to a total of 55 years in state prison. (CT 277-79; RT 2708).
Petitioner's retained counsel, William Bartz, filed a direct appeal in California Court of Appeal Case No. B163483, raising petitioner's claims presented as Grounds Three and Four herein. (CT 276; Lodged Docs. 11, 13). On December 17, 2003, counsel also filed a habeas petition ("First State Petition") in California Court of Appeal Case No. B171850, raising petitioner's claim presented as Ground One herein. (Lodged Doc. 14). On March 22, 2004, the Court of Appeal affirmed the judgment on direct appeal and denied the First State Petition in a single reasoned decision. (Lodged Doc. 3).
On May 3, 2004, petitioner, through counsel, filed a petition for review in California Supreme Court Case No. S124483, raising only Ground Three. (Lodged Doc. 4). On June 9, 2004, the California Supreme Court denied review. (Lodged Doc. 5).
On December 4, 2006, petitioner, through counsel, filed a state habeas petition ("Second State Petition") in California Supreme Court Case No. S148594, raising Ground One. (Lodged Doc. 6). On June 13, 2007, the California Supreme Court denied the Second State Petition without comment. (Lodged Doc. 7). On June 18, 2007, Bartz stopped representing petitioner. (Docket No. 8 at Ex. H (Bartz letter informing petitioner that petitioner had "one year from the date of the denial (June 13, 2007) to file in the federal district court")).
On July 26, 2009, petitioner, proceeding pro se, constructively filed a state habeas petition ("Third State Petition") in the Los Angeles County Superior Court, raising the new claim he sought to raise in these proceedings, i.e., that the trial court placed "unadjudicated" weapons enhancements after petitioner's conviction. (Lodged Doc. 16). On August 5, 2009, the Superior Court denied the Third State Petition on procedural grounds and on the merits. (Lodged Doc. 17). As to the merits, the Superior Court observed: "A review of the court file indicates that the enhancements were alleged in the Information. A review of the verdict forms indicates that the jury in fact deliberated and found the weapon enhancements true." (Lodged Doc. 17).
Meanwhile, as noted above, petitioner filed the instant Petition with this Court on December 28, 2007, and the Motion to Stay on July 29, 2009.
On or about August 24, 2009, petitioner filed a state habeas petition ("Fourth State Petition") in California Court of Appeal Case No. B218378, raising his new claim. (Lodged Doc. 18). On October 16, 2009, the Court of Appeal denied the Fourth State Petition on the merits, stating, "Our file reflects that petitioner was charged with the firearm enhancements, and the jury found the firearm enhancement allegations to be true." (Lodged Doc. 19).
On November 24, 2009, petitioner constructively filed a state habeas petition ("Fifth State Petition") in California Supreme Court Case No. S178439, raising his new claim. (Lodged Doc. 8). On May 20, 2010, the California Supreme Court summarily denied the Fifth State Petition with citations to In re Robbins, 18 Cal. 4th 770, 780 (1998), In re Clark, 5 Cal. 4th 750 (1993), and In re Dixon, 41 Cal. 2d 756 (1953). (Lodged Doc. 25).
On December 1, 2014, petitioner, through counsel, filed a state habeas petition ("Sixth State Petition") in California Supreme Court Case No. S222837, raising claims asserted herein as Grounds Two and Four. (Lodged Docs. 26-27). On February 11, 2015, the California Supreme Court denied the Sixth State Petition with citations to In re Robbins, 18 Cal. 4th at 780, and In re Clark, 5 Cal. 4th at 767-69. (Lodged Doc. 28).
As noted above, the Ninth Circuit issued its decision on appeal in Bastidas v. Chappell on July 1, 2015, and its mandate following petitioner's appeal on July 24, 2015. (Docket No. 58). ///
IV. DISCUSSION
The Court has conducted a de novo review of the portions of the Merits R&R and the Stay R&R to which the parties have objected, concurs with and accepts the Magistrate Judge's findings and conclusions therein, and overrules the parties' objections to the extent they are inconsistent with this Order. The Court does not further address the Merits R&R and objections thereto herein, but does specifically address the Stay R&R and objections thereto below and independently denies the Motion to Stay. Based on the Court's de novo review of the Kelly and Rhines analysis in the Stay R&R, the Court concludes that a recommendation to deny petitioner's Motion to Stay was warranted at the time petitioner made the Motion to Stay. Assuming, arguendo, that the Petition itself was timely, petitioner has not demonstrated that his new claim - the exhaustion of which was the predicate for the Motion to Stay - was timely for a Kelly stay, or that there was good cause for his failure to exhaust the new claim and the new claim was potentially meritorious for a Rhines stay. Further, and alternative to its concurrence with and acceptance of the Stay R&R and denial of the Motion to Stay, and assuming the case would have progressed differently had the Motion to Stay been granted and had petitioner's unadjudicated claims been considered on the merits, the Court denies such claims for the reasons explained below. /// ///
As an initial matter, the Court rejects petitioner's argument that respondent's failure to file an opposition to the Motion to Stay should have been deemed a consent to the stay under Local Rule 7-12. See Petitioner's Objections at 3-4. Local Rule 7-12 provides that "[t]he failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion." See L.R. 7-12 (emphasis added). The docket reflects that the Magistrate Judge did not require respondent to file a response. In any event, relief under Local Rule 7-12 is discretionary, as is the decision whether to grant a stay (see Rhines, 544 U.S. at 276), thus even if a response were required the Magistrate Judge acted within her discretion to consider the Motion to Stay without finding that respondent consented to the stay.
A. Petitioner's New Claim Was (and Is) Time-Barred
As the Magistrate Judge explained, for petitioner to be entitled to a Kelly stay to exhaust his unexhausted claim, his new claim must not have been time-barred. See King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009) ("A petitioner seeking to use the Kelly procedure will be able to amend his unexhausted claims back into his federal petition once he has exhausted them only if those claims are determined to be timely."), cert. denied, 558 U.S. 887 (2009). Petitioner admits that he sought to add the new claim after the statute of limitations had expired. See Petitioner's Objections at 4. Petitioner argues, however, that the new claim related back to Ground Four of the Petition. (Id. at 5). Respondent, on the other hand, argues that the Petition itself is untimely. (Respondent's Objections at 2).
The statute of limitations in petitioner's case began to run on September 8, 2004 - the day after petitioner's conviction became final. See Stay R&R at 2-3 (establishing timeline). Since petitioner had no properly-filed state habeas petitions pending from September 8, 2004 through September 7, 2005, statutory tolling would not render the Petition timely filed. See id. at 3-4 (discussing same).
Petitioner argues that he is entitled to equitable tolling for the time that he was represented by Bartz because Bartz allegedly "defrauded [], misled [], and abandoned him." (Petitioner's Response at 1-10; Docket No. 8 & exhibits thereto). As noted above, when Bartz stopped representing petitioner on June 18, 2007, Bartz informed petitioner that petitioner had until June 13, 2008 to file a federal habeas petition. See Docket No. 8 at Ex. H.
Given the Court's alternative disposition herein, the Court has assumed without deciding that equitable tolling would apply during the time that Bartz was representing petitioner (i.e., from prior to the limitations period until the California Supreme Court's June 13, 2007 denial of the Second State Petition (Lodged Doc. 7)), to render the Petition timely filed. See Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (court may properly deny petition on the merits rather than reaching complex questions lurking in time bar of federal habeas statute), cert. denied, 535 U.S. 950 (2002). Accordingly, in that event, the statute of limitations would have commenced to run on June 14, 2007 and would have expired no later than June 13, 2008. Petitioner did not file his new claim with the state courts until July 26, 2009 (Lodged Doc. 16), and did not seek to add that claim herein until the Motion to Stay on July 29, 2009 (Docket No. 15) - over a year after the statute of limitations would have expired.
Assuming that the Petition was timely filed, petitioner may not use the relation back doctrine to avoid the limitations bar for the new claim. Petitioner argues that the new claim relates back to Ground Four which challenged the sufficiency of the evidence supporting the gun enhancement allegations. See Petitioner's Objections at 4-5. However, because Ground Four clearly was unexhausted at the time of the Motion to Stay (see Petition at 6, acknowledging same), and was not exhausted until February 11, 2015 (Lodged Doc. 28), petitioner's new claim may not relate back to the filing date for Ground Four. See King, 564 F.3d at 1142 (Mayle v. Felix, 545 U.S. 644 (2005), "requires new claims to relate back to claims properly contained in the original petition - that is, those claims that were exhausted at the time of filing").
Based on the Court's de novo review, petitioner's new claim was time-barred as of the filing of the Motion to Stay, and the Magistrate Judge's finding that a Kelly stay was inappropriate was proper. King, 564 F.3d at 1142.
B. Petitioner Has Not Shown Good Cause or That His New Claim Was (or Is) Potentially Meritorious
Rhines held that "in limited circumstances" a court may stay a petition and hold it in abeyance pending exhaustion of unexhausted claims where: (1) "there was good cause for petitioner's failure to exhaust his claims first in state court"; (2) the "unexhausted claims are potentially meritorious"; and (3) "there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Rhines, 544 U.S. at 277-78. Petitioner argues that he was entitled to a Rhines stay because he had "good cause" for his failure to exhaust the new claim due to Bartz's failure to raise the new claim on direct appeal. See Petitioner's Objections at 5-8; see also Notice of Supplemental Authority (Docket No. 72) (arguing for "good cause" in light of Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 2017) (holding that a petitioner could establish "good cause" for a Rhines stay where he "was without counsel in state post-conviction proceedings"). Petitioner also argues in conclusory fashion that his new claim was not plainly meritless. See Petitioner's Objections at 9.
In suggesting "good cause" for petitioner's failure to exhaust his new claim, counsel for petitioner appears to conflate the new claim with Ground Four of the Petition, stating:
At its core, Bastidas's firearm-enhancements claim is a sufficiency of the evidence claim. It alleges that because no firearm was ever recovered from any crime scene, or found on his person upon his arrest, there was insufficient evidence to support the firearm enhancements. To remind the Court, the only "weapon" that the police recovered was a BB gun that resembled a 9 millimeter automatic pistol.(Petitioner's Objections at 8 (citing RT 1043-44, 1048, 1220)). The Motion to Stay did not seek to stay these proceedings to pursue petitioner's insufficiency of the evidence claim; rather, petitioner sought a stay based on the new claim he filed in the Third State Petition alleging that the trial court violated his constitutional rights by "plac[ing] unadjudicated weapon enhancements consecutive to petitioner[']s accusatory charge after conviction of only the charged offense. . . ." See Motion to Stay; see also Lodged Doc. 16 at 3 (Third State Petition alleging that the firearm enhancements were not found by a jury or "alleged in the accusatory charge").
Because the Motion to Stay did not seek a stay of the proceedings for petitioner to exhaust his unexhausted claims contained in the Petition, i.e., Grounds Two and Four (see Motion to Stay; compare Petition Memo at 9, 11-12 (counsel requesting Rhines stay for Grounds Two and Four if the Court determined those grounds required exhaustion, but containing no supporting argument)), petitioner's Rhines argument based on Bartz's failure to include Ground Four in the petition for review to the California Supreme Court is immaterial to whether the Magistrate Judge properly denied the Motion to Stay. See Petitioner's Objections at 8; see also Lodged Docs. 4, 11, 13 (Bartz raising Ground Four with the California Court of Appeal but apparently abandoning Ground Four in the petition for review).
While there is "little authority" on what constitutes "good cause" for a petitioner's failure to exhaust for a Rhines stay, a showing of "good cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify that failure." Blake v. Baker, 745 F.3d 977, 980, 982-83 (9th Cir.) (holding that ineffective assistance of post-conviction counsel can be good cause for a Rhines stay where it is more than a "bare allegation"; a "concrete and reasonable excuse, supported by evidence" that state post-conviction was ineffective will suffice), cert. denied, 135 S. Ct. 128 (2014). Blake had timely filed a federal habeas petition asserting for the first time that his trial counsel was ineffective for failure to investigate Blake's abusive upbringing and history of mental illness, supported by evidence compiled by federal post-conviction counsel. Id. at 979, 982-83.
In contrast to Blake, petitioner (who was represented by new counsel when he initiated these proceedings) did not include his new claim with the Petition when it was filed on December 28, 2007. See Petition at 5-6 (asserting only Grounds One through Four). Rather, petitioner inexplicably waited until July 26, 2009, to file for the first time a state petition (the Third State Petition) raising the new claim (Lodged Doc. 16), and filed the Motion to Stay on July 29, 2009 (Docket No. 15). Assuming that Bartz may have been ineffective for failing to raise and exhaust Ground Four on direct appeal, petitioner has not provided any evidence or otherwise explained the delay in his case in filing and exhausting the new claim - either while Bartz was representing petitioner, or from the time when Bartz stopped representing petitioner on June 18, 2007, until petitioner raised the new claim on July 26, 2009. Petitioner takes the position that the new claim is based on the same operative facts as Ground Four, i.e., the application of the firearm enhancements to his case. See Petitioner's Objections at 5. These facts were known to petitioner since at least the time of sentencing.
Under these circumstances, petitioner has given the Court nothing more than a "bald assertion" that there was good cause for failing to exhaust the new claim before he attempted to present it via the Motion to Stay. See Blake, 745 F.3d at 982 ("[A] bald assertion cannot amount to a showing of good cause."); see also, e.g., Cardenas v. Lizarraga, 2016 WL 7477593, at *2 (C.D. Cal. Dec. 29, 2016) (finding no "good cause" for Rhines stay where the petitioner alleged that appellate counsel failed to raise relevant claim; unlike in Blake, petitioner did not provide supporting evidence for his claim, and did not allege that he told appellate counsel to raise the unexhausted claim) (citations omitted); Jauregui v. Jones, 2016 WL 4257147, at *3 (C.D. Cal. July 7, 2016) (same where petitioner provided no evidence that his appellate counsel was constitutionally ineffective for failing to raise the unexhausted grounds; the fact that the petitioner disagreed with counsel's strategy and believed the unexhausted grounds should have been included in the appeal did not constitute ineffective assistance, and the petitioner provided no evidence showing he had raised and discussed his unexhausted grounds with appellate counsel but was disregarded) (citations omitted), report and recommendation adopted, 2016 WL 4251572 (C.D. Cal. Aug. 9, 2016); Nogueda v. California, 2014 WL 5473548, at *2 (E.D. Cal. Oct. 23, 2014) (finding petitioner failed to support ineffective assistance claim as required in Blake by providing only oral assertions, as opposed to documentation, showing he discussed his claims with appellate counsel and was ignored); and see Wizar v. Sherman, 2016 WL 3523837, at *4 (C.D. Cal. May 19, 2016) (collecting district court cases finding that petitioner did not provide sufficient evidence as required in Blake to support contention that appellate counsel was ineffective in failing to raise certain claims), report and recommendation adopted, 2016 WL 3511781 (C.D. Cal. June 27, 2016).
Petitioner's reliance on Dixon v. Baker, 847 F.3d 714 (9th Cir. 2017) (see Docket No. 72), as supporting his "good cause" argument does not alter the Court's conclusion. Dixon held:
A petitioner who is without counsel in state post[-]conviction proceedings cannot be expected to understand the technical requirements of exhaustion and should not be denied the opportunity to exhaust a potentially meritorious claim simply because he lacked counsel. Such a denial strikes us as unwarranted when even a petitioner who did have counsel in state post-conviction proceedings has a path to a stay under Rhines if he alleges a plausible claim that his post-conviction counsel was ineffective.Id. at 721-22 (citation omitted). Here, like in Blake and unlike in Dixon, petitioner is alleging "good cause" based on appellate counsel's performance, not that he had no counsel at all.
Even if petitioner had shown "good cause" for a Rhines stay for failing to exhaust his new claim before bringing it to this Court - and he has not - petitioner has not shown that his claim is "potentially meritorious." Rhines, 544 U.S. at 278. The record belies petitioner's claim in the Motion to Stay (as raised in the Third, Fourth, and Fifth State Petitions) that the firearms enhancements were not alleged in a charging document or decided by the jury. The record before the Magistrate Judge when she denied the Motion to Stay included: (1) the verdict forms in which the jury found the weapon enhancement allegations true (Lodged Doc. 1); (2) the Abstract of Judgment which also indicates that the enhancements were "charged and found to be true" (Lodged Doc. 1); (3) petitioner's petition for review which noted that petitioner was charged with and convicted of the firearm special allegations (Lodged Doc. 4 at 4); and (4) the Second State Petition which also noted that petitioner was charged with and convicted of the firearm special allegations (Lodged Doc. 6 at 2). Compare Motion to Stay and Lodged Docs. 8, 16, 18 (arguing only that the firearm allegations were not charged or found true by a jury). The record before the Court now also includes the Indictment which charged the firearm special allegations. See CT 110-15; see also CT 98-99 (instructions to the grand jury that it was alleged that petitioner personally and intentionally discharged a firearm in committing the charged offenses, and that the grand jury had to determine whether petitioner intentionally and personally discharged a "firearm," which was defined as including a handgun).
Based on the Court's de novo review, the Court concludes that petitioner has not shown "good cause" for failure to exhaust his new claim, or that the new claim was potentially meritorious so as to merit a Rhines stay based on the record at the time of the Motion to Stay. The Magistrate Judge's finding that a Rhines stay was inappropriate was proper. Rhines, 544 U.S. at 278.
C. Assuming a Stay Should Have Been Granted and the Court Reached the Merits of Petitioner's Unadjudicated Claims, Petitioner Would Not Be (and Is Not) Entitled to Federal Habeas Relief
In remanding this case, the Ninth Circuit instructed the Court to consider de novo whether the Motion to Stay should have been granted and, if so, to determine how the case may have progressed differently on the new claim if the stay had been granted. See Bastidas v. Chappell, 791 F.3d at 1164. Giving petitioner the benefit of all doubt and assuming that the Motion to Stay should have been granted, and further assuming that petitioner would have been allowed to proceed /// /// to the merits of not only his new claim but also Grounds Two and Four, he would not be (and is not) entitled to federal habeas relief. These claims fail on the merits under even a de novo standard of review. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (courts can deny writs of habeas corpus under 28 U.S.C. § 2254 by engaging in a de novo standard of review, the most favorable standard of review for a petitioner; "a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review") (citing 28 U.S.C. § 2254(a)).
Although not part of the "pertinent question" to this Court, Bastidas, 791 F.3d at 1164, petitioner argues that the denial of the Motion to Stay affected how petitioner proceeded on Grounds Two and Four, and urges the Court to allow petitioner to proceed on Grounds Two and Four. See Petitioner's Objections at 9-12. Petitioner's case may have progressed differently regarding Grounds Two and Four had the Magistrate Judge granted the Motion to Stay. When counsel for petitioner filed the Petition, counsel requested that the Court grant petitioner a Rhines stay if the Court found that petitioner needed to exhaust Grounds Two and Four, because those grounds had not been raised with the California Supreme Court. See Petition Memo at 9, 11-12. It may be that petitioner would not have conceded to the dismissal of Grounds Two and Four as unexhausted if the Magistrate Judge had not denied the Motion to Stay. The Court need not and does not decide whether a stay request for Grounds Two and Four would have been granted.
Respondent argues that the case would not have progressed differently because petitioner's new claim and Grounds Two and Four are procedurally barred. See Respondent's Objections at 7-8; Respondent's Reply at 4. Whereas, petitioner argues, inter alia, that the state bar to his claims was inadequate and does not preclude federal habeas review. See Petitioner's Response at 11-16. For ease of analysis, the Court has reached the merits of petitioner's unadjudicated claims assuming, arguendo, that the claims have not been procedurally defaulted. See Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997) (in the interest of judicial economy, federal courts may address merits of defaulted habeas claims if issues on claim's merits are clear but the procedural default issues are not); Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) ("While we ordinarily resolve the issue of procedural bar prior to any consideration on the merits on habeas review, we are not required to do so when a petition clearly fails on the merits.") (citation omitted), cert. denied, 568 U.S. 1105 (2013).
1. Petitioner's New Claim Does Not Merit Federal Habeas Relief
In the new claim, petitioner alleges that the firearm enhancements that were used to increase his sentence were neither charged nor found true by a jury. See Motion to Stay; see also, e.g., Lodged Doc. 8 (Fifth State Petition raising new claim to California Supreme Court). As noted above, this claim is time-barred and, as detailed above, petitioner's conclusory allegations have no factual support in the record and, in fact, contradict the record. See CT 98-99, 110-15; see also Lodged Docs. 1, 4, and 6 (showing that the enhancements were alleged in the Indictment and found true by the jury).
Petitioner's baseless and conclusory allegations do not warrant habeas relief. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (mere conclusions unsupported by record not sufficient to state habeas claim), cert. denied, 517 U.S. 1143 (1996); James v. Borg, 24 F.3d 20, 26 (9th Cir.) (baseless claim unsupported by specific facts did not warrant habeas relief), cert. denied, 513 U.S. 935 (1994); see generally Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (a habeas petition is "expected to state facts that point to a real possibility of constitutional error") (citations and internal quotations omitted). Petitioner would not have been entitled to federal habeas relief on his new claim. Petitioner has shown no constitutional violation. 28 U.S.C. § 2254(a).
2. Ground Two Does Not Merit Federal Habeas Relief
In Ground Two, petitioner claims that he was sentenced to an upper term without aggravating factors being submitted to the jury in violation of Cunningham v. California, 549 U.S. 270, 281 (2007) ("[A]ny fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence."). See Petition at 5-6; Petition Memo at 8-9; see also Lodged Doc. 26 at 23-26 (Sixth State Petition raising claim to California Supreme Court).
At sentencing, the trial court noted that it had read and considered the probation report and considered the following factors in aggravation: (1) "The crime involved great violence, threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, and callousness"; (2) "The planning, sophistication, and professionalism with which the crime was carried out indicates premeditation"; (3) "The defendant has engaged in a pattern of violent conduct which indicates a serious danger to society"; (4) "The defendant's prior convictions as an adult or adjudications of commissions of crimes as a juvenile are numerous and of increasing seriousness"; and (5) "the crime involved multiple victims." (RT 2703-04). The court found no circumstances in mitigation. (RT 2704). The court then selected Count 7 (second degree robbery) as the principal term and imposed the upper term on that count. (RT 2703, 2705-06).
Petitioner contends that the upper term sentence on Count 7 violates Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny. See Lodged Doc. 26 at 25-26.
a. Applicable Law
In Apprendi, the Supreme Court overturned a sentencing scheme allowing a state court judge to enhance a penalty beyond the statutory maximum on the ground that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. In Blakely v. Washington, the Supreme Court held that the "'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. 296, 303 (2004) (emphasis in original, citation omitted). On January 22, 2007 - after petitioner's conviction was final - the Supreme Court issued Cunningham, in which it held that a California judge's imposition of an upper term sentence based on facts found by the judge, other than the fact of a prior conviction, violated the constitutional principles set forth in Apprendi and Blakely. 549 U.S. at 288-93.
Since Cunningham, both the California Supreme Court and the Ninth Circuit have determined that a single aggravating factor is sufficient to authorize an upper term sentence under California law. People v. Black, 41 Cal. 4th 799, 813-15 (2007), cert. denied, 552 U.S. 1144 (2008); Butler v. Curry, 528 F.3d 624, 643 (9th Cir.), cert. denied, 555 U.S. 1089 (2008). Therefore, if at least one of the aggravating factors on which a judge relies in sentencing a defendant to an upper term sentence is established in a manner consistent with the Sixth Amendment, the sentence does not violate the Constitution.
Even if, however, none of the aggravating factors on which a judge relies in sentencing a defendant to an upper term sentence is established in a manner consistent with the Sixth Amendment, habeas relief would not be warranted if the error was harmless. Washington v. Recuenco, 548 U.S. 212, 222 (2006); Estrella v. Ollison, 668 F.3d 593, 598 (9th Cir. 2011); Butler, 528 F.3d at 648. An error is harmless if it did not have a "'substantial and injurious effect or influence'" on a sentence. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Estrella, 668 F.3d at 598; Butler, 528 F.3d at 648. "Under that standard, [the Court] must grant relief if [it is] in 'grave doubt' as to whether a jury would have found the relevant aggravating factors beyond a reasonable doubt." Butler, 528 F.3d at 648 (citing O'Neal v. McAninch, 513 U.S. 432, 436 (1995)).
Although a court may not "consider new admissions made at sentencing in [a] harmless error inquiry," evidence presented at the sentencing proceeding may be considered "insofar as [it] would help . . . adduce what other evidence might have been produced at trial, had the question been properly before the jury." United States v. Salazar-Lopez, 506 F.3d 748, 755 (9th Cir. 2007), cert. denied, 553 U.S. 1074 (2008); see also Estrella, 668 F.3d at 599 (federal court may consider probation report in evaluating an Apprendi error for harmlessness).
b. Analysis
Petitioner's sentencing claim fails because at least one of the aggravating factors on which petitioner's upper term sentence is predicated - the fact that the crime involved multiple victims and the fact that his prior convictions as an adult or adjudications of commissions of crimes as a juvenile were numerous and of increasing seriousness - withstands constitutional scrutiny. Butler, 528 F.3d at 643; Black, 41 Cal. 4th at 813-15.
First, the jury's verdicts specifically provided that petitioner's crimes involved multiple victims. The jury found petitioner guilty of robbery of Candelario Medina and of Richard Espinoza, and guilty of assault with a firearm and robbery of Julio Americo Balladares (incorrectly referred to in the verdict forms and Indictment as "Valladeres") as charged in Counts 1, 3, 4, 6, and 7 of the Indictment. See CT 250, 252-53, 256-57 (verdicts); see also CT 110-15 (Indictment alleging that: (1) petitioner robbed Candelario Medina on or about August 2, 2001 and on or about August 9, 2001 (Counts 1 and 3); (2) petitioner robbed Richard Espinoza on or about August 9, 2001 (Count 4); (3) petitioner robbed and attempted to murder Julio Americo Balladares with a firearm on or about August 16, 2001 (Counts 6 and 7)). California courts may rely on the fact that there were multiple victims in imposing upper term sentences. See People v. Calhoun, 40 Cal. 4th 398, 405-08 (2007) (upholding use of "multiple victims" factor to impose upper term sentence; "because the jury here found beyond a reasonable doubt that [the defendant] committed crimes against four separate victims, and hence the crimes involved multiple victims, [the defendant] was not deprived of his jury trial right"); Cal. R. Ct. 4.408(a) ("The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge.").
Given the jury's explicit findings, the trial court did not engage in any judicial fact-finding when it cited the "multiple victims" factor, and it could rely on this factor to impose an upper term sentence without running afoul of the Sixth Amendment. See, e.g., Hall v. Lattimore, 2011 WL 5117710, at *19-20 (C.D. Cal. Aug. 22, 2011) (rejecting Cunningham claim where jury found petitioner guilty of crimes against three different victims, necessarily finding that there were "multiple victims," to support imposition of upper term sentence based on the fact that there were multiple victims), report and recommendation adopted, 2011 WL 5118595 (C.D. Cal. Oct. 27, 2011); Servin v. Hedgpeth, 2011 WL 3420635, at *18-19 (C.D. Cal. Feb. 28, 2011) (rejecting Cunningham claim where, as here, jury verdicts supported trial judge's finding that there were "multiple victims" to impose an upper term sentence), report and recommendation adopted, 2011 WL 3418079 (C.D. Cal. Aug. 4, 2011).
Second, petitioner admitted that he previously had been convicted of a robbery on May 7, 1998, as charged. (RT 2415-17). Additionally, the trial court reviewed petitioner's probation report and observed, without comment or objection, that petitioner had "numerous" prior convictions as an aggravating factor. (RT 2703-04). The fact that a petitioner has numerous prior convictions need not be determined by a jury for imposition of an upper term sentence. See Cunningham, 549 U.S. at 288-89; see also Servin v. Hedgpeth, 2011 WL 3420635, at *18 (collecting district cases finding that fact that fact that petitioner suffered numerous prior convictions falls within prior conviction exception). While the Court does not have petitioner's probation report in the record to confirm that petitioner's prior convictions were "numerous," (see Butler, 528 F.3d at 645 ("prior conviction exception applies only to facts directly reflected in the documents of conviction")), the Court need not review the probation report to validate this finding, given that the "multiple victims" finding is reflected in petitioner's documents of conviction.
Even if the trial court cited to invalid aggravating circumstances to support the imposition of the upper term sentence, such error was harmless given that the court cited to at least one valid factor in imposing the upper term sentence. Butler, 528 F.3d at 643; Black, 41 Cal. 4th at 813-15. Additionally, the Court has no "grave doubt" that the jury would have found that petitioner's crimes involved "multiple victims" beyond a reasonable doubt given their verdicts if the jury had expressly been presented with this question. Butler, 528 F.3d at 648.
Because the court relied on at least one valid factor in imposing the upper term sentence which is reflected in the jury verdicts, petitioner has shown no constitutional violation to merit federal habeas relief. See 28 U.S.C. § 2254(a); Blakely, 542 U.S. at 303 (statutory maximum is maximum sentence judge may impose solely on basis of facts reflected in jury verdict or admitted by defendant).
3. Ground Four Does Not Merit Federal Habeas Relief
In Ground Four, petitioner claims that there was insufficient evidence to find that he used or discharged a firearm in committing the offenses because only a BB gun was found. See Petition at 6; Petition Memo at 11-12; see also Lodged Doc. 26 at 26-27 (Sixth State Petition raising claim to California Supreme Court). Petitioner argues:
The evidence at trial of the discharge of a firearm was witness Balladares' testimony that he heard two gunshots and believed that Petitioner, who was purportedly sitting in the driver's seat of a van, was aiming at him. Additionally, an officer testified that he heard what sounded like a single shot. However, immediately after the shots were allegedly fired, officers searched the van from which Petitioner purportedly shot and found only a BB gun. Even though officers searched the entire area surrounding the scene . . . of the alleged shooting, no firearm was found. Officers also tested Petitioner's hands and found no gunshot residue. Further, there were no casings, bullet holes, nor any other indicia of firearm discharge found at the scene.Petition Memo at 11. ///
Petitioner argues that the evidence tended to show that if petitioner used a "firearm" in any of the robberies, it was a BB gun. See Lodged Doc. 26 at 26-27. Petitioner is not entitled to federal habeas relief on this claim.
a. Applicable Law
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). However, "[a] petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005), as amended, cert. denied, 546 U.S. 1137 (2006). In particular, to review the sufficiency of the evidence in a habeas corpus proceeding, the court must determine whether "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis original); see also Coleman v. Johnson, 566 U.S. 650, 656 (2012) (per curiam) ("[T]he only question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality.").
All evidence must be considered in the light most favorable to the prosecution, Jeffers, 497 U.S. at 782; Jackson, 443 U.S. at 319, and if the facts support conflicting inferences, reviewing courts "must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326; McDaniel v. Brown, 558 U.S. 120, 133 (2010) (per curiam). The testimony of a single witness is sufficient to sustain a conviction. Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) (per curiam). Circumstantial evidence and the inferences drawn therefrom also may be sufficient to sustain a /// conviction. Ngo v. Guirbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011) (citations omitted).
Sufficiency of the evidence claims are judged by the elements defined by state law. Jackson, 443 U.S. at 324 n.16. As in effect at the time of petitioner's crimes, trial and sentencing, California Penal Code sections 12022(a)(1), 12022.5(a)(1) and 12022.53(b) and (c) provided for additional terms of imprisonment when, during the commission of a felony such a robbery, a defendant is armed with and "personally uses a firearm," or "personally and intentionally discharges a firearm." See Cal. Penal Code §§ 12022(a)(1), 12022.5(a)(1), 12022.53(b), (c); see also CT 110-15 (Indictment alleging same). The jury found true allegations that petitioner personally used a firearm in: (1) the robberies of Candelario Medina on or about August 2, 2001 and August 9, 2001 (Counts 1 and 3) (Cal. Penal Code §§ 12022.5(a)(1), 12022.53(b)); (2) the robbery of Richard Espinoza on or about August 9, 2001 (Count 4) (Cal. Penal Code §§ 12022.5(a)(1), 12022.53(b)); and (3) the assault with a firearm and robbery of Julio Americo Balladares on or about August 16, 2001 (Counts 6 and 7) (Cal. Penal Code §§ 12022(a)(1), 12022.5(a)(1), 12022.53(b)). The jury also found true the allegation that petitioner personally and intentionally discharged a firearm in the robbery of Balladares on or about August 16, 2001 (Count 7) (Cal. Penal Code §12022.53(c)). See CT 250, 252-53, 256-57 (verdicts); see also CT 110-15 (Indictment).
As applicable to the enhancements, a "firearm" is defined in California Penal Code sections 12001 and 16520(a) as "a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion." See Cal. Penal Code § 16520(a). The California Court of Appeal has interpreted these statutes as excluding gas-operated pellet or BB guns. See People v. Vasquez, 7 Cal. App. 4th 763, 767 (1992). ///
b. Analysis
Petitioner argues that under People v. Vasquez, a BB gun is not a firearm for sentencing enhancements, and the evidence at trial at most showed that petitioner was armed with a BB gun. See Petitioner's Objections at 8; Lodged Doc. 26 at 27 (citing People v. Vasquez). Petitioner essentially asks this Court to ignore the foregoing legal standards which circumscribe the Court's assessment of a sufficiency of the evidence claim, and reweigh the evidence adduced at his trial concerning whether a firearm was used in his offenses. The Court may not do so. Viewing the evidence adduced at trial in the light most favorable to the verdict, a rational jury could conclude that petitioner was armed with, used, and/or discharged a firearm in committing the charged crimes, notwithstanding the fact that no firearm was recovered and gunshot residue testing of petitioner did not show any residue.
The facts set forth in the Merits R&R (Docket No. 45 at 3-4) - which the Court has independently determined accurately reflect the substance of the record - are incorporated herein by reference. The robberies in question occurred on August 2, 9, and 16, 2001, when petitioner and a partner robbed parking lot attendants at gunpoint.
Candelario Medina testified that on August 2, 2001, two men who he thought were customers walked into the parking lot where he was working. (RT 929-30). One of the men pushed Medina and put a gun to Medina's heart, while the other man took money from Medina's pocket. (RT 930-32, 948). Medina protested saying, "that's my salary," and the man who took his money gave him $15 back. (RT 930). The two men were two feet away from Medina at the time. (RT 930). Medina identified petitioner in court, and prior to trial in a photographic lineup and a live lineup, as the man who put the gun to his heart. (RT 930-31, 944-48, 1541-43). Medina said he did not call the police because the men took only around $100 from him and Medina did not want to waste time. (RT 932). Medina told his supervisor, Richard Espinoza, about the robbery the following day. (RT 932, 951, 954-58).
On August 9, 2001, Medina was working when the same two men returned to his parking lot. (RT 932). As they entered, Medina told Espinoza that they were the two men who had robbed him. (RT 932-33, 949-50, 965, 967). One of the men who Medina identified as petitioner had a gun in his hand. (RT 933, 936). Espinoza tried to run but petitioner grabbed him and put the gun to Espinoza's neck. (RT 933, 935, 949, 960-61, 967-68). Medina saw petitioner "prep" the gun to fire before putting it to Espinoza's neck by pulling the slide back and releasing it. (RT 937-39, 949). Petitioner took all of Espinoza's money while the other man came to Medina, showed Medina a gun, and robbed Medina. (RT 937, 939, 961-63).
Medina said that the second person who was with petitioner was not petitioner's co-defendant Wilmer Alberto. (RT 936). Espinoza also said the second person was not Alberto. (RT 994).
Medina said that he was familiar with guns because Medina owned seven guns in his name, including revolvers. (RT 937-39, 973-74). He described petitioner's gun as a chrome or silver semiautomatic "38 or a 45." (RT 938, 972-73). It was the same gun petitioner had put to Medina's heart during the first robbery. (RT 938, 973). Medina thought the gun was a real gun and his opinion became more certain during the second robbery because petitioner prepped the gun "just like it was a real one." (RT 986-87). After the men left, Espinoza and Medina called the police who responded to the lot. (RT 941-42).
Espinoza testified that he was working with Medina on August 9, 2001, when he saw two men approach who Medina said looked like the men who had robbed Medina a week before. (RT 991-92, 1008-09, 1013). Espinoza at first said he did not know that Medina had been robbed before but later testified that Medina had told him about the first robbery around the time it happened. (RT 991, 1009- 11). When Medina pointed the men out, Espinoza tried to run but one of the men, who he identified in court and before trial in a live lineup as petitioner, had a gun and pulled on the gun to chamber a bullet, so Espinoza stopped running. (RT 992-93, 1002-04, 1011, 1014, 1542-43). Petitioner put the gun right under Espinoza's jaw, reached in Espinoza's pocket and took his money, and grabbed Espinoza's throat asking for the rest of the money. (RT 995-98, 1014-15, 1022-23). Espinoza described the gun as a silver "automatic." (RT 997, 1023). The men left and Espinoza called 911. (RT 1000-01, 1016).
Espinoza was shown a photographic lineup before trial, but did not identify anyone in such lineup. (RT 1005-06, 1567).
Julio Balladares testified that he was working at a parking lot on August 16, 2001, when a red van pulled in. (RT 1240-45, 1260, 1283-84). Balladares walked to the driver to hand him a parking ticket and collect the parking fee. (RT 1245). The passenger of the van got out and walked up to Balladares and pulled a gun on Balladares. (RT 1245-46, 1261). Balladares identified petitioner in court as the driver of the van and co-defendant Alberto as the passenger. (RT 1246).
Alberto pulled out a pistol, pointed it at Balladares and told Balladares to give him the money. (RT 1247). Alberto pushed Balladares toward a car and put the gun to Balladares's neck. (RT 1247, 1263-67). Balladares handed Alberto the money. (RT 1248). Alberto demanded more money, saying he knew Balladares had more. (RT 1249). The driver - petitioner - was aiming a gun at Balladares. (RT 1249, 1285). Balladares said petitioner's gun looked like a revolver and Alberto's gun looked like a semiautomatic gun. (RT 1249-50, 1262).
Balladares denied having more money, when Balladares did have more, and Alberto told petitioner, "Shoot that guy. He doesn't want to give me all the money." (RT 1250, 1285). Balladares heard a gunshot coming from petitioner in the van. (RT 1250-51, 1268, 1281, 1286, 1292-93). Balladares looked back and saw petitioner pointing the revolver at him. (RT 1287). Balladares handed Alberto all the money he had. (RT 1251, 1287, 1293-95). Balladares heard one more shot then Alberto returned to the van and the men drove out of the parking lot. (RT 1251-52, 1255, 1281, 1287-88, 1295). Petitioner again was pointing the revolver at Balladares. (RT 1288-89). A patrol car was approaching and a coworker of Balladares indicated to the police that the van was the source of the shots. (RT 1254-56). Balladares ran after the van and saw it stopped two blocks away with police present. (RT 1256-57, 1283). Once petitioner was detained, police took Balladares to where petitioner was and asked Balladares if he was one of the men who robbed him and Balladares said yes, he was the driver. (RT 1257-58, 1276-77, 1280-81, 1289).
Responding police officer Jesse Mojica testified that he and his partner Officer Cervantes were patrolling on August 16, 2001, when Mojica heard a single gunshot a short distance away. (RT 1027-29, 1053, 1056, 1215-16). Officer Mojica actually flinched or ducked down when he heard the shot. (RT 1028, 1217). The shot was "close" and "loud." (RT 1217). Officer Mojica drove in the direction where he heard the shot and saw a red minivan with two people inside pulling away from the side of the street. (RT 1029-30, 1032, 1057, 1226). A parking attendant came running from the side of the street waving a flag saying, "The van, the van." (RT 1030-32, 1226). Officer Mojica made a U-turn and started following the van while Officer Cervantes radioed in "shots fired." (RT 1032, 1057-58, 1226-27). Officer Mojica followed the van from about two to three car lengths behind for about two blocks before the van entered the driveway for a parking lot and the two men inside ran from the van into the lot. (RT 1033-38, 1227, 1231-32). As Officer Mojica approached the van, he circled wide because he was afraid more shots would be fired and he believed the men had a gun. (RT 1034, 1223-24). He had not seen anything thrown from the van as he followed it. (RT 1227). When the driver exited the van, Officer Mojica's view of the driver was obstructed by the van for less than 30 seconds. (RT 1228-29). Officer Mojica searched the lot for the two men and did not find them, so he got back in his car and circled the area looking for the men. (RT 1038-43, 1059, 1232-33).
Officer Mojica found a man lying down along a fence line who he identified in court as petitioner. (RT 1043-44). The police then took petitioner into custody. (RT 1044). Petitioner's sweatshirt was torn and matched a piece of torn material found on a fence inside the parking lot where the two men first ran from the van. (RT 1040-41, 1045, 1219).
Officer Mojica returned to the van and its doors were still open. (RT 1048). A search of the van yielded a dark colored BB gun that was a replica of a 9-millimeter semi-automatic pistol. (RT 1048, 1220-21, 1233-34). Officer Mojica did not recall if the top of the BB gun moved like the slide of a real gun would move. (RT 1234). No gun or bullets casings were ever found in a search of the area. (RT 1220, 1236-37, 1558). The BB gun was not fingerprinted. (RT 1222, 1313-14). Balladares said he saw no damage from bullet holes or any bullet casings anywhere in the vicinity where petitioner shot. (RT 1282). Gunshot residue testing of petitioner came back negative. (RT 1549, 1604-06, 1617-22).
A detective testified that a revolver has a cylinder and does not spit out casings when fired. (RT 1543-44). To load a live round into a chamber of an automatic gun, the top or slide of the gun must be pulled back. (RT 1543-44). That is not how a BB gun is loaded. (RT 1544). The detective also testified that there had been a series of parking lot robberies, but that after petitioner and co-defendant Alberto were arrested, there were no more parking lot robberies. (RT 1545).
On August 16, 2011, Detective George Marentez was working undercover in the area of the parking lot when he heard one gunshot followed by a second gunshot. (RT 1319-21). Detective Marentez drove to investigate if anyone was hurt when he heard a police call that an officer needed help one block away from where Detective Marentez was located. (RT 1320-22, 1515). Such a call is typically made when an officer thinks his or her life is in danger, such as when shots are fired. (RT 1322). Detective Marentez saw a crowd of people and asked them if they had seen anyone come by with a gun. (RT 1322-23, 1516). The people pointed him South, so Detective Marentez drove South where he saw a van with its doors open that appeared to be empty, with one empty police car nearby and two others responding in that direction. (RT 1323, 1336-37, 1506-07, 1517-18). Detective Marentez saw defendant Alberto running away from the area to a parking lot and a parked car. (RT 1325-28, 1337, 1507-10). Alberto drove the car away and Detective Marentez followed Alberto while radioing in information for uniformed officers to stop Alberto's car. (RT 1328-29, 1511-13). Uniformed officers caught up with Alberto and detained him. (RT 1331, 1513-14, 1525-34).
At the close of the prosecution's case, outside the presence of the jury defense counsel moved to dismiss the gun use allegations given that only a BB gun had been recovered. (RT 1576-77). The trial court denied the motion, finding enough evidence - particularly given the witness testimony about hearing a weapon being fired - to submit to the jury on the issue of whether the guns used were real or a BB gun. (RT 1577-79).
In his opening statement, petitioner's counsel told the jury: Although petitioner was arrested after the third robbery on August 16, there was no physical evidence linking petitioner to the first two robberies, only "shaky" witness identifications (RT 915-18). Although petitioner was arrested about two and a half blocks from where the third robbery occurred, following a chase of the getaway van during which the police lost sight of the van for more than 30 seconds, petitioner was just a prior felon in the wrong place at the wrong time. (RT 918). There was no evidence that petitioner used a live firearm. (RT 919). There were two air pistols or BB guns recovered from the scene immediately around the third robbery, but no guns were found, no bullet casings were found, and gunpowder residue testing of petitioner was negative. (RT 919).
In closing, petitioner's counsel argued: There was no physical evidence a live firearm was used to rob Balladares. (RT 1881). No real gun was recovered. (RT 1882). No bullet casings were recovered. (RT 1882). No bullet holes were found and no parking lot customers complained of any bullet holes to their cars. (RT 1882-83). No gunpowder residue was recovered. (RT 1883). The only physical evidence recovered was the "fake black replica air gun." (RT 1883). Accordingly, the only evidence that a live firearm was shot was the opinion evidence that the sounds the police officers and Balladares heard "resembled" a live firearm being fired. (RT 1881). Officer Mojica heard only one shot; whereas Balladares testified he heard two shots. (RT 1881-82). As to the earlier robberies of Medina and Espinoza, the evidence whether a live firearm was used was even weaker: no guns were recovered and there was no allegation by the victims that shots were even fired. (RT1883-84). The only testimony was from the victims that an object resembling a firearm was brandished and that on one occasion petitioner made a "cocking" action. (RT 1884).
As the foregoing reflects, the jury was squarely presented with petitioner's theory that a real gun was not used in any of the offenses. By its verdicts, the jury clearly rejected petitioner's theory in favor of the testimony of witnesses who said they saw petitioner with a real gun during the first two robberies, and heard petitioner fire a real gun at the last robbery. The witness testimony was sufficient to support the jury's true findings on the firearm enhancement allegations. See Bruce v. Terhune, 376 F.3d at 957-58. A rational trier of fact could have agreed with the jury that petitioner used a firearm in committing the offenses. See Coleman, 566 U.S. at 651. That a BB gun was recovered does not negate the testimony suggesting a real gun was used in the first robbery since the gun petitioner allegedly had was a chrome semiautomatic, and the BB gun was dark colored. Nor does it negate the possibility that a real gun was used in the last robbery since petitioner was described as firing a revolver, not a weapon that would have resembled the BB gun.
Based on a de novo review, the Court concludes that the evidence adduced at trial was sufficient to support the jury's true findings on the firearm allegations and accordingly, that Ground Four does not entitle petitioner to habeas relief.
IV. ORDERS
IT IS THEREFORE ORDERED: (1) the Merits R&R (Docket No. 45) which recommends denial of Grounds One and Three on the merits is accepted and approved, the objections thereto are overruled and Grounds One and Three are denied on the merits; (2) the Stay R&R (Docket No. 16) which recommends denial of the Motion to Stay is accepted and approved, the objections thereto are overruled to the extent they are inconsistent with this Order, and the Motion to Stay is denied; (3) alternative to the acceptance and approval of the Stay R&R and denial of the Motion to Stay, the new claim and Grounds Two and Four are denied on the merits; (4) the Petition is denied and this action is dismissed with prejudice; and (5) Judgment shall be entered accordingly.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on counsel for petitioner and respondent.
IT IS SO ORDERED. DATED: August 30, 2019
/s/_________
HONORABLE DAVID O. CARTER
UNITED STATES DISTRICT JUDGE