Opinion
Case No. CV 14-5910-JPR
03-31-2015
RODNEY GAINES, Petitioner, v. CYNTHIA Y. TAMPKINS, Warden, Respondent.
MEMORANDUM OPINION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE
PROCEEDINGS
On July 29, 2014, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody, raising seven claims. That same day, he filed an "election regarding consent" form, stating that he "voluntarily consent[ed] to have a United States Magistrate Judge conduct all further proceedings in this case, decide all dispositive and non-dispositive matters, and order the entry of final judgment." On October 15, 2014, Respondent filed an Answer and Memorandum of Points and Authorities; she also consented to proceed before a Magistrate Judge. On October 28, 2014, Petitioner filed a reply.
For the reasons discussed below, the Petition is denied and this action is dismissed with prejudice.
PETITIONER'S CLAIMS
I. "Insufficient evidence to convict for burglary." (Pet. at 5.)
II. "The elements of burglary were not proven beyond a reasonable doubt." (Id.)
III. "The elements of simple assault were not proven beyond a reasonable [doubt]." (Id.)
IV. "Insufficient evidence to convict for simple assault." (Id. at 6.)
V. "The state failed to follow the standard of CALCRIM 252." (Id.)
VI. "False evidence used to convict." (Id. at 9.)
VII. "Prosecutorial misrepresentation/misconduct rising to the level of a violation of due process under the Fourteenth Amendment." (Id. at 10.)
BACKGROUND
On December 10, 2012, Petitioner was convicted by a Los Angeles County Superior Court jury of simple assault, in violation of California Penal Code section 240(a), and commercial burglary, in violation of section 459. (Lodged Doc. 1, Clerk's Tr. at 189-90; Lodged Doc. 3, 4 Rep.'s Tr. at 2407-08.) On December 31, 2012, the court sentenced Petitioner to four years in state prison. (Lodged Doc. 1, Clerk's Tr. at 241-42; Lodged Doc. 3, 4 Rep.'s Tr. at 2721-22.)
Petitioner appealed, raising a claim corresponding to ground one of the Petition. (Lodged Doc. 4.) On November 7, 2013, the California Court of Appeal affirmed the judgment. (Lodged Doc. 7.) Petitioner thereafter raised the same issue in a petition for review (Lodged Doc. 10); on January 15, 2014, the California Supreme Court summarily denied it (Lodged Doc. 11).
Meanwhile, on February 13, 2013, Petitioner filed a habeas petition in the California Court of Appeal, raising claims corresponding to ground one and parts of grounds two, six, and seven. (Lodged Doc. 8.) On November 7, 2013, the court of appeal summarily denied the petition. (Lodged Doc. 9.) On April 4, 2014, Petitioner filed a habeas petition in the state supreme court, raising claims corresponding to grounds two through seven. (Lodged Doc. 12.) On June 11, 2014, the supreme court summarily denied the petition. (Lodged Doc. 13.)
SUMMARY OF THE EVIDENCE
Because Petitioner challenges the sufficiency of the evidence to support his convictions, the Court has independently reviewed the state-court record. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). Based on this review, the Court finds that the following statement of facts from the California Court of Appeal opinion on direct review fairly and accurately summarizes the evidence. See 28 U.S.C. § 2254(e)(1) (in habeas proceedings involving "a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct"). But see Murray v. Schriro, 745 F.3d 984, 1001 (9th Cir. 2014) (discussing "state of confusion" in circuit's law concerning interplay of § 2254(d)(2) and (e)(1)).
At around 11:00 p.m. on June 24, 2012, Luis Gomez-Alcala (Alcala) was working as a cashier at a gas station on West Avenue K in Lancaster. The gas station
included a small convenience store selling drinks, cigarettes, snacks and similar items. Mr. Alcala was inside the store assisting a customer when the customer told him there was a man outside near the gas pumps asking for money and bothering the customers. Part of Mr. Alcala's assigned job duties was to tell panhandlers at the station to leave the premises.
After the customer finished paying, Mr. Alcala went outside and saw [Petitioner] near the gas pumps. [Petitioner] had a black backpack, as well as a bicycle with several bags on it. Mr. Alcala told [Petitioner] to stop "molest[ing] my customer[s];" that if he did not stop he would have to call the police or he would get in trouble with his manager. [Petitioner] responded calmly, said "okay" and left the premises.
After some time had passed, two more customers complained there was a man bothering them outside and asking for money. Mr. Alcala looked out the window and saw that [Petitioner] had returned and was again by the gas pumps. He again went outside and told [Petitioner] to leave. [Petitioner] was angry, spoke in a loud voice and mocked Mr. Alcala. Mr. Alcala raised his voice as well and reiterated that he had to leave. Mr. Alcala then went back inside the store, but saw that [Petitioner] still had not left. He went back outside and told [Petitioner] he had to go. [Petitioner] "was more aggressive. . . . He [got] madder." [Petitioner] told Mr. Alcala he was only trying to get money to eat
and Mr. Alcala had no right to tell him to leave or call the police. [Petitioner] eventually left the gas station. On cross-examination, Mr. Alcala conceded he may have testified at the preliminary hearing that he only dealt with [Petitioner] twice, and not three times.
Around 1:00 a.m., Mr. Alcala was inside the store, waiting for a couple of customers to decide what they were going to purchase. While behind the register, Mr. Alcala was not protected by any bullet-proof glass, nor did he have access to any weapon to use in self-defense. [Petitioner] entered the store, wearing the same black backpack Mr. Alcala had seen him with earlier. [Petitioner] immediately began yelling at Mr. Alcala, as well as pointing and gesturing in his direction. The couple that was in the store appeared to Mr. Alcala to be scared by [Petitioner's] conduct and left.
Mr. Alcala felt nervous because of [Petitioner's] aggressive behavior, and he did not know if [Petitioner] had some sort of weapon. Mr. Alcala started to back away and grabbed his cell phone so he could call 911. Mr. Alcala was afraid and thought [Petitioner] was going to hurt him. Mr. Alcala became more scared because [Petitioner] kept yelling louder and coming closer to him. [Petitioner] yelled obscenities at Mr. Alcala, such as "Don't you ever f----n talk to me like you did before you bitch . . . if you, f--- you and the cops mother f----n bitch. If you ever talk to me like that again I'm gonna go over this counter and beat the f--- out of you,
punk. Think I'm lying, you think I'm lying? I'm gonna beat your mother f----n ass, you bitch. F--- you." "I'm a soldier, mother f----r. Call the cops you bitch. You don't know who you're f----g with, dude." Mr. Alcala felt [Petitioner] had threatened to hit him and "beat" him. Portions of the video surveillance tapes from inside the store showing the incident, including the words [Petitioner] yelled at Mr. Alcala, were played for the jury.
[Petitioner] then picked up one of the empty cash register trays and threw it at Mr. Alcala. Mr. Alcala moved quickly to one side and avoided being hit in the face. Mr. Alcala told [Petitioner] he needed to control himself or he would call the police. [Petitioner] was only about four feet away and did not stop yelling at Mr. Alcala, so he called 911. [Petitioner] then abruptly left the store and Mr. Alcala saw him riding his bike down West Avenue K. The deputy sheriffs arrived in a few minutes. [Petitioner] was detained about a mile from the gas station, no weapons were found on him, and the arresting deputy did not believe he appeared to be under the influence.
[Petitioner] was charged by amended information with one count of making criminal threats (Pen. Code, § 422, subd. (a); count 1), one count of assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and one count of second degree burglary (§ 459; count 3). . . . [Petitioner] pled not guilty and moved to represent
himself. The court made the requisite admonitions and determined [Petitioner] voluntarily and intelligently waived his right to appointed counsel.(Lodged Doc. 7 at 2-4 (footnote omitted).)
The case proceeded to trial by jury in November 2012. The jury returned a verdict acquitting [Petitioner] on counts 1 and 2, but convicting [Petitioner] on the lesser included charge of misdemeanor assault (§ 240) as to count 2. The jury also convicted [Petitioner] of second degree burglary in count 3.
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Under AEDPA, the "clearly established Federal law" that controls federal habeas review consists of holdings of Supreme Court cases "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).
Although a particular state-court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. Id. at 391, 412-13. A state-court decision is "contrary to" clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. Early v. Packer, 537 U.S. 3, 8 (2002). A state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Id.
State-court decisions that are not "contrary to" Supreme Court law may be set aside on federal habeas review only "if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or based on 'an unreasonable determination of the facts' (emphasis added)." Id. at 11 (quoting § 2254(d)). A state-court decision that correctly identifies the governing legal rule may be rejected if it unreasonably applies the rule to the facts of a particular case. Williams, 529 U.S. at 407-08. To obtain federal habeas relief for such an "unreasonable application," however, a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." Id. at 409-10. In other words, habeas relief is warranted only if the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).
Petitioner raised ground one of the Petition before the state court of appeal on direct appeal (Lodged Doc. 4) and in a habeas petition (Lodged Doc. 8). On the same day, the court of appeal rejected his claim on direct appeal in a reasoned decision (Lodged Doc. 7) and denied the habeas petition without comment (Lodged Doc. 9). The California Supreme Court subsequently denied Petitioner's petition for review without comment or citation to authority. (Lodged Doc. 11.) The Court therefore "looks through" the state supreme court's silent denial to the last reasoned decision, the court of appeal decision on direct review, as the basis for the state court's judgment on ground one. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991) (holding that California Supreme Court, by silently denying petition for review, presumably did not intend to change court of appeal's analysis); see also Berghuis v. Thompkins, 560 U.S. 370, 380 (2010) (when state supreme court denies discretionary review of decision on direct appeal, that decision is relevant state-court decision for purposes of AEDPA's standard of review). Because the court of appeal adjudicated Petitioner's claim on the merits, the Court reviews it under the deferential AEDPA standard of review. See Richter, 562 U.S. at 98.
Petitioner raised parts of grounds two, six, and seven in his habeas petition in the court of appeal (Lodged Doc. 8), and he subsequently raised grounds two through seven in a habeas petition in the state supreme court (Lodged Doc. 12). Both courts summarily denied the petitions. (Lodged Docs. 9, 13.) Absent evidence to the contrary, which does not exist here, a summary denial is presumed to be a decision on the merits. Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013). Because no reasoned state-court decision exists, the Court conducts an independent review of the record to determine whether the state supreme court, in denying the claims, was objectively unreasonable in applying controlling federal law. See Haney v. Adams, 641 F.3d 1168, 1171 (9th Cir. 2011) (holding that independent review "is not de novo review of the constitutional issue, but only a means to determine whether the state court decision is objectively unreasonable" (internal quotation marks omitted)); see also Richter, 562 U.S. at 98, 102 (holding that "petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief," and reviewing court "must determine what arguments or theories supported or . . . could have supported[] the state court's decision[,] and 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]").
DISCUSSION
I. Petitioner's Sufficiency-of-the-Evidence Claims Do Not Warrant Habeas Relief
In grounds one through five, Petitioner essentially contends that insufficient evidence supported his convictions for burglary and simple assault. (Pet. at 5-6.)
A. Applicable Law
The Due Process Clause of the 14th Amendment of the U.S. Constitution protects a criminal defendant from 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). Thus, a state prisoner who alleges that the evidence introduced at trial was insufficient to support the jury's findings states a cognizable federal habeas claim. Herrera v. Collins, 506 U.S. 390, 401-02 (1993).
In considering a sufficiency-of-the-evidence claim, a court must determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). California's standard for determining the sufficiency of evidence to support a conviction is identical to the federal standard enunciated in Jackson. People v. Johnson, 26 Cal. 3d 557, 576 (1980). On federal habeas review, a state court's resolution of a sufficiency-of-the-evidence claim is evaluated under 28 U.S.C. § 2254(d)(1) rather than § 2254(d)(2). Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005) (as amended).
A federal habeas court reviews a sufficiency claim with an additional layer of deference, in that relief is not warranted unless the state court's application of Jackson was not just wrong but "objectively unreasonable." Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam) (internal quotation marks omitted). Thus, a petitioner faces a "high bar" when challenging on federal due process grounds the sufficiency of the evidence used to obtain a state conviction. Id. Jackson "makes clear that it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial." Cavazos v. Smith, 132 S. Ct. 2, 3-4 (2011) (per curiam). Thus, the reviewing court "cannot second-guess the jury's credibility assessments"; such determinations are "generally beyond the scope of review." Kyzar v. Ryan, ___ F.3d ___, No. 12-17564, 2015 WL 1061892, at *1 (9th Cir. Mar. 12, 2015) (internal quotation marks omitted).
The reviewing court "must look to state law for the substantive elements of the criminal offense," although the "minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Coleman, 132 S. Ct. at 2064 (internal quotation marks omitted).
Under California law, "burglary consists of entry into a home or certain other structures 'with intent to commit grand or petit larceny or any felony.'" People v. Prince, 40 Cal. 4th 1179, 1255 (2007) (quoting Cal. Penal Code § 459); accord People v. Montoya, 7 Cal. 4th 1027, 1041 (1994). To prove burglary, the prosecution must establish that a defendant "entered the premises with the intent to commit a felony or theft." People v. Holt, 15 Cal. 4th 619, 669 (1997) (as modified). "[T]he intent to commit any felony will sustain a conviction of burglary," regardless of whether the felony "actually is committed." Montoya, 7 Cal. 4th at 1041-42 & n.8 (emphasis in original). Such intent "is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence." Holt, 15 Cal. 4th at 669 (internal quotation marks omitted).
Section 459 does not require "breaking" or other prohibited entry; rather, anyone who enters certain structures with felonious intent commits burglary. See Descamps v. United States, 133 S. Ct. 2276, 2282 (2013) ("Whereas burglary statutes generally demand breaking and entering or similar conduct, California's does not: It covers, for example, a shoplifter who enters a store, like any customer, during normal business hours."); People v. Gauze, 15 Cal. 3d 709, 713 (1975) (en banc) (noting that under California burglary statute, "every person who enters with felonious intent is a burglar," no matter "whether a person entering a house with larcenous or felonious intent does so through a closed door, an open door or a window"). In any event, Petitioner does not contest the court of appeal's finding that he entered the store; he argues only that he did so without the requisite intent.
Proof of the crime of criminal threats, moreover, requires that (1) "the defendant willfully threatened to commit a crime which will result in death or great bodily injury to another person"; (2) "the defendant made the threat with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out"; (3) "the threat — which may be made verbally, in writing, or by means of an electronic communication device — was on its face and under the circumstances in which it was made, so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat"; (4) "the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family's safety"; and (5) "the threatened person's fear was reasonable under the circumstances." People v. Toledo, 26 Cal. 4th 221, 227-28 (2001) (alterations and internal quotation marks omitted); see also Cal. Penal Code § 422.
Under California law, "[a]n assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Cal. Penal Code § 240. Assault is a general-intent crime that does not require a specific intent to injure the victim, "only . . . an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." People v. Williams, 26 Cal. 4th 779, 782, 790 (2001). Hence, with an assault charge, "[t]he pivotal question is whether the defendant intended to commit an act likely to result in . . . physical force, not whether he or she intended a specific harm." Id. at 785 (internal quotation marks omitted).
B. Burglary Conviction
In ground one, Petitioner contends that insufficient evidence supported his burglary conviction because no evidence showed that he "entered with the intent to commit criminal threats or assault with a deadly weapon." (Pet. at 5.) In ground two, he contends that "[t]he elements of burglary were not proven beyond a reasonable doubt" because "[f]our of the elements" to prove criminal threats under California Penal Code section 422 were "not present." (Id.) Finally, in ground five, he argues that "[t]he court of appeal ignored the spirit and intent of CALCRIM 252," which, as he puts it, states that "for a crime requiring specific intent (such as burglary) the person must not only intentionally commit the prohibited act, but must do so with a specific intent and mental state." (Id. at 6.) For the reasons discussed below, habeas relief is not warranted on these grounds.
1. Background
The evidence at trial, which included Alcala's testimony and security-camera recordings, amply supports a finding that Petitioner entered the store with the intent to commit a criminal threat. Alcala, who was about five feet tall and weighed 180 pounds, testified that on June 24, 2012, he was the only person working the night shift at the AM/PM gas station on West Avenue K in Lancaster. (Lodged Doc. 3, 3 Rep.'s Tr. at 1542-44.) He testified that he approached Petitioner outside the store "about three times" that night, telling him not to panhandle and asking him to leave the premises. (Id. at 1548, 1550-52.) Alcala testified that Petitioner was "more aggressive" and "madder" each time Alcala asked him to leave. (Id. at 1553; see also id. at 1548, 1552.) At around one a.m. on June 25, 2012, Petitioner entered the store and was "very aggressive," saying "insulting words," looking at Alcala, and yelling in a "loud voice since he opened the door." (Id. at 1554, 1815-16.) Petitioner yelled that he was going to "beat [Alcala's] ass." (Id. at 1817.) No bullet-proof glass separated Alcala from the people in the store. (Id. at 1555-56.) Alcala testified that the only two customers in the store left without making a purchase; he believed they left because they were scared. (Id. at 1815, 1827.)
Alcala testified that he was afraid Petitioner was going to hurt him and did not know whether Petitioner had a weapon. (Id. at 1816-17; see also id. at 1819 (Alcala testifying that he was scared).) Alcala backed up to avoid any punch (id. at 1816), and he continued to back up as he tried to use his cell phone to look up the number for the local police station (id. at 1818). Petitioner's voice grew louder as he moved toward Alcala. (Id. at 1819-20.) Alcala was "very nervous" because Petitioner was close to him. (Id. at 1821.) Alcala testified that Petitioner, who was apparently either leaning over the counter or on top of it, then threw the cash tray toward Alcala's face "very hard" and with "a lot of force." (Id. at 1823.) Alcala testified that he moved to one side; had he not, the tray "would have hit [his] face." (Id. at 1823-24.) He testified that the tray passed about 16 inches from his head and landed on the floor. (Id. at 1824-25.) Alcala was "very scared" and called 911. (Id. at 1820, 1822.) Although the incident in the store lasted only about 30 seconds, Alcala testified, "[a]t that time I was scared and it seemed to be . . . endless." (Id. at 1830.) One of the officers who responded to the 911 call testified that Alcala told him that he felt threatened, although he did not record that in his police report. (Id. at 1882.)
The prosecutor and Petitioner both indicated that Petitioner was on top of the store's counter shortly before he threw the cash tray. (See, e.g., Lodged Doc. 3, 3 Rep.'s Tr. at 1820 (prosecutor noting that Petitioner was "on the top of the counter"), 1821 (prosecutor noting that Petitioner was "on the counter" and "on top of the counter"), 1822 (prosecutor noting that Petitioner was "on the counter"); Lodged Doc. 3, 4 Rep.'s Tr. at 2167 (Petitioner stating in closing argument that he "climbed up on the counter" before picking up cash tray). But see Lodged Doc. 3, 3 Rep.'s Tr. at 1829 (prosecutor noting that still photograph from surveillance video depicted Petitioner "leaning over onto the counter").)
A surveillance video of the incident in the store, taken from several angles, was played for the jury. (See, e.g., id. at 1557-58, 1801-02, 1820, 1826-27.) A transcript of the recording showed that Petitioner told Alcala the following:
Don't you ever fucken talk to me like you did before you bitch . . . if you, fuck you and the cops mother fucken bitch. If you ever talk to me like that again I'm gonna go over this counter and beat the fuck out of you, punk. Think I'm lying, you think I'm lying? I'm gonna beat your mother fucken ass, you bitch. Fuck you.(Lodged Doc. 1, Clerk's Tr. at 178.)
[Break]
Don't ever, don't ever talk to me like that again, man. I'm a soldier, mother fucker. Call the cops you bitch. You don't know who you're fucking with, dude. Fuck you. Motherfucker.
On direct review, the court of appeal denied Petitioner's claim that insufficient evidence supported his burglary conviction:
[Petitioner's] sole contention on appeal is that there is insufficient evidence supporting his conviction for burglary. Specifically, [Petitioner] argues his conviction for burglary is not supported by substantial evidence of the requisite specific intent. We are not persuaded.
. . . .
The jury found [Petitioner] guilty of second degree burglary. . . . As [Petitioner] concedes, "[o]ne may [be] liable for burglary upon entry with the requisite intent to commit a felony or a theft . . . whether any felony or theft actually is committed." (Id. at pp. 1041-1042; see also CALCRIM No. 1700.)
At trial, [Petitioner] did not contest he entered the store where Mr. Alcala was working behind the register. Plainly, the video surveillance tape shown to the jury established he did so. [Petitioner] contended he did not enter the store with the specific intent to commit either a criminal threat or assault with a deadly weapon.(Lodged Doc. 7 at 5-6.)
. . . The jury was presented with the testimony of Mr. Alcala, supported by the surveillance video, that after encounters between [Petitioner] and Mr. Alcala escalated in hostility over more than an hour, [Petitioner] returned to the store. [Petitioner] entered and immediately pointed and yelled at Mr. Alcala, frightening the two customers into leaving the store. [Petitioner] acted increasingly aggressively, moving toward Mr. Alcala, and eventually throwing a cash register tray in the direction of Mr. Alcala's head. The record and reasonable inferences therefrom solidly support a determination that [Petitioner] entered the store with the specific intent to criminally threaten Mr. Alcala and put him in fear of [Petitioner]. [Petitioner] has not persuaded us there is any basis for disturbing the jury's verdict.
2. Analysis
The state courts were not objectively unreasonable in rejecting Petitioner's sufficiency-of-the-evidence claims. Viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences therefrom in its favor, a rational jury could have found beyond a reasonable doubt that Petitioner entered the store with the specific intent to make criminal threats.
The court of appeal does not appear to have determined whether sufficient evidence supported a finding that Petitioner entered the store with the intent to commit assault with a deadly weapon. (See Lodged Doc. 7.) The Court therefore addresses only whether the court of appeal was objectively unreasonable in concluding that sufficient evidence showed that Petitioner entered the store with the intent to commit criminal threats. See Sochor v. Florida, 504 U.S. 527, 538 (1992) (noting that "no violation of due process" occurs when "a trial court instructed a jury on two different legal theories, one supported by the evidence, the other not"); Rendon v. Holder, 764 F.3d 1077, 1088 (9th Cir. 2014) (finding that to prove burglary, "the state does not require that the prosecution prove and the jury unanimously find that the defendant intended to commit any particular offense following entry"; "it is sufficient that the defendant had the requisite intent to commit larceny or any felony, whether or not the jurors disagree regarding the particular offense the defendant intended to commit"); Holmes v. Helling, 252 F. App'x 839, 840 (9th Cir. 2007) (finding on habeas review that "[n]otwithstanding [Jackson, 443 U.S. 307], a general verdict need not be set aside merely on the chance . . . that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient" (internal quotation marks omitted, second alteration in original)).
Given the evidence showing that after Alcala confronted Petitioner about panhandling at the gas station, Petitioner entered the store in a "very aggressive" manner, immediately yelled that he would "beat the fuck" out of Alcala, and threw a cash tray at his face, a rational factfinder could draw the inference that Petitioner entered the store with the intent to criminally threaten Alcala. See Coleman, 132 S. Ct. at 2064 ("Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial . . . ."); Payne v. Borg, 982 F.2d 335, 341 (9th Cir. 1992) (as amended) ("Jackson commands that we defer to the rational inferences of the state tribunal regarding [petitioner's] intent."); People v. Carter, 36 Cal. 4th 1114, 1157 (2005) (in prosecution for burglary, felonious intent "may be inferred from all of the facts and circumstances disclosed by the evidence"). The court of appeal therefore was not objectively unreasonable in rejecting this claim on direct review. Petitioner is not entitled to habeas relief on his sufficiency-of-the-evidence claim in ground one.
In ground two, Petitioner contends that the elements of burglary were not proved beyond a reasonable doubt. (Pet. at 5.) Specifically, Petitioner argues that "[f]our of the elements" of criminal threats, the crime he allegedly intended to commit after entering the store, were "not present: (1) [t]here was no threat to kill or inflict great bodily injury; (2) the threat was conditional; (3) there was no sustained fear[;] and (4) there was no evidence of sustained fear." (Id.) But contrary to Petitioner's claims, the evidence supports those elements: Petitioner aggressively entered the store (Lodged Doc. 3, 3 Rep.'s Tr. at 1554), yelled that he would "go over this counter and beat the fuck out of" Alcala and "beat [his] mother fucken ass" (id. at 1815-16; Lodged Doc. 1, Clerk's Tr. at 178), moved toward Alcala, and threw a cash tray toward his face (Lodged Doc. 3, 3 Rep.'s Tr. at 1819-23). See People v. Butler, 85 Cal. App. 4th 745, 753 (Ct. App. 2000) (finding that "it is the circumstances under which the threat is made that give meaning to the actual words used," and "[e]ven an ambiguous statement may be a basis for a violation of section 422"); see also In re Ryan D., 100 Cal. App. 4th 854, 861 (Ct. App. 2002) ("To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific"; rather, "the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution" (emphasis in original)). Moreover, Alcala repeatedly testified that he was very scared and nervous and thought Petitioner was going to hurt him. (See Lodged Doc. 3, 3 Rep.'s Tr. at 1815-19, 1821-22.)
In any event, to support the burglary conviction, the evidence needed only to show that Petitioner intended to make a criminal threat when he entered the store, not that he actually succeeded in completing that crime. See People v. Allen, 21 Cal. 4th 846, 863 n.18 (1999) ("[T]he gist of the [burglary] offense is entry with the proscribed intent, and [] such an entry constitutes the completed crime of burglary regardless of whether any felony or theft actually is committed." (emphasis in original, alteration and internal quotation marks omitted)). Thus, even if Petitioner is correct that some of the elements necessary to establish criminal threats were "not present," that does not undermine the validity of his burglary conviction. Similarly, it does not matter that the jury acquitted Petition of making criminal threats. See Flores v. Long, No. SACV 13-0169-JGB AS, 2014 WL 2611278, at *15 n.16 (C.D. Cal. June 5, 2014) (rejecting petitioner's argument "that the jury's determination that he was not guilty of stalking the victim precludes a determination that he entered [the] apartment with the intent to stalk the victim" because "[t]o commit burglary, the underlying felony need be neither committed nor attempted; only the intent to commit the felony is required" (internal quotation marks omitted, emphasis in original)). The state supreme court was not objectively unreasonable in denying this claim on habeas review.
Petitioner acknowledged on direct review that "[a]ctual commission of the underlying felony is not an element of burglary." (Lodged Doc. 4 at 7; see also Lodged Doc. 7 at 5 (court of appeal's finding on direct review that Petitioner "concede[d]" that one may be liable for burglary based on intent to commit felony whether or not felony is actually committed).) He nevertheless raised this issue to the state courts on habeas review. (See Lodged Docs. 8, 12.)
Finally, in ground five, Petitioner contends that the state court of appeal "ignored the spirit and intent of CALCRIM 252," which, as he puts it, states that "for a crime requiring specific intent (such as burglary) the person must not only intentionally commit the prohibited act, but must do so with a specific intent and mental state." (Pet. at 6.) But as discussed above, the court of appeal fully addressed the issue of felonious intent on direct review (see Lodged Doc. 7), and it was not objectively unreasonable in concluding that sufficient evidence supported a finding that Petitioner entered the store with the intent to criminally threaten Alcala. The state supreme court therefore was not objectively unreasonable in denying this claim on habeas review.
For all these reasons, habeas relief is not warranted on grounds one, two, or five of the Petition.
C. Simple-Assault Conviction
In ground three, Petitioner contends that the elements of simple assault were not proved beyond a reasonable doubt, and in ground four, he contends that insufficient evidence supported his conviction for simple assault. (Pet. at 5-6; Reply at 3-4.) In both grounds, Petitioner relies on the prosecutors' arguments at the preliminary hearing and at trial that Petitioner committed felony, not misdemeanor, assault. (Pet. at 5-6; Reply at 3-4.) He contends that the evidence therefore "clearly shows no intent by the district attorney to pursue a criminal theory of liability for simple assault." (Pet. at 6.)
Specifically, in ground three, Petitioner contends that the prosecutor "stated at the close of the preliminary hearing, that [all] conduct was [felony] conduct - including the assault." (Pet. at 6 (alterations in original).) He further argues that in closing argument at trial, a different prosecutor stated that "this is not a case where the [Petitioner] maybe swung at Mr. Alcala and missed . . . [m]isdemeanor conduct, simple assault," and that Petitioner "changed the case from a misdemeanor assault to a felony when [he] used the cash tray." (Id. (some alterations in original).) In ground four, Petitioner argues that "[f]or the reasons stated in [g]round three; more specifically, the prosecutor's statements that the assault was not misdemeanor assault," the evidence was insufficient to support his assault conviction. (Id.)
1. Background
At the close of the preliminary hearing, Petitioner moved to dismiss the charges against him or, in the alternative, to reduce two of his felony charges to misdemeanors under California Penal Code section 17(b). (Lodged Doc. 1, Clerk's Tr. at 26-29.) The prosecutor opposed Petitioner's requests, arguing, among other things, that
Section 17 defines felonies and misdemeanors. Subsection (b)(5) provides that the trial court can determine at or before the preliminary hearing "that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint."
[t]he constant testimony was that [Petitioner] entered the room and was acting in an extremely aggressive manner. The court heard the words that were used. The victim felt that the conduct was so serious - I think he referred to it several times as extremely aggressive. He was in fear, an object was thrown at his head, and the People's position is that this is felony conduct.(Id. at 29.) The court held Petitioner to answer on felony charges of committing criminal threats (Cal. Penal Code § 422), assault with a deadly weapon (§ 245(a)(1)), and burglary (§ 459) and denied his motion to reduce the charges to misdemeanors. (Lodged Doc. 1, Clerk's Tr. at 29-30.)
A different prosecutor represented the government at trial. (Compare id. at 9, with Lodged Doc. 3, 3 Rep.'s Tr. at 601.) After the close of evidence, the court informed the parties that it "felt [it] had a sua sponte duty" to include jury instructions for "[California Penal Code section] 240, simple assault, as a lesser included as to count 2," the assault-with-a-deadly-weapon charge. (Lodged Doc. 3, 4 Rep.'s Tr. at 2112.) The prosecutor did not object and the court overruled Petitioner's objection. (Id. at 2113-15.)
During closing argument, Petitioner stated that he was "on trial for three felonies that I did not commit, and one misdemeanor that I did not commit, and that I should be acquitted of, but the misdemeanor included what the court considers a lesser included instruction . . . I'm not guilty of that either." (Id. at 2187.) Petitioner asked the jury to find him "not guilty on all three felonies, criminal threats, assault with a deadly weapon and commercial burglary, and . . . the simple assault claim . . . ." (Id.)
In rebuttal, the prosecutor argued that Petitioner mentioned a charge, simple assault. Now, the judge is going to read you an instruction of what we call a lesser included. It's . . . a misdemeanor assault. The judge is required by law to read you that instruction because it's a lesser included of the assault with a deadly weapon. And the reason the judge has to read that to you is because if you find [Petitioner] not guilty of assault with a deadly weapon, you can decide whether or not he's guilty of the misdemeanor assault. But if you find him guilty of the assault with a deadly weapon, you don't even need to consider the misdemeanor assault.(Id. at 2192-93.)
The reason this case is not a misdemeanor assault is because [Petitioner] changed it from a misdemeanor assault to a felony assault with a weapon when he used that cash tray. This is not a case where [Petitioner] maybe swung at Mr. Alcala and missed. Misdemeanor conduct, simple assault. No, he elevated his conduct to a felony when he picked up that cash tray and threw it directly at Mr. Alcala's face. So if you find him guilty of the assault with a deadly weapon, you don't even need to consider the simple assault.
2. Analysis
The state supreme court was not objectively unreasonable in rejecting grounds three and four on habeas review. Viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences therefrom in its favor, a rational jury could have found beyond a reasonable doubt that Petitioner committed simple assault.
As previously discussed, Alcala testified, and the surveillance video apparently showed, that Petitioner forcefully threw a cash tray at Alcala. (See Lodged Doc. 3, 3 Rep.'s Tr. at 1820, 1823.) Alcala testified that had he not moved to the side, the tray would have hit him in the face. (Id. at 1823-24.) Given that evidence, a rational trier of fact could have concluded that Petitioner threw the cash tray with knowledge that it would probably result in "the application of physical force against another." See Williams, 26 Cal. 4th at 782, 790. As such, the state court was not objectively unreasonable in rejecting Petitioner's claim that insufficient evidence supported his conviction for simple assault.
Elsewhere in the Petition, Petitioner seems to contend that he clearly did not throw the tray at Alcala given that it allegedly hit the wall eight to 10 feet away from him. (See Pet. at 10-11.) As discussed in Section II, however, the jury viewed surveillance video of the incident from different angles and saw first-hand what transpired in the store. Moreover, Petitioner may simply not have aimed well.
To the extent Petitioner contends that the evidence was insufficient because the prosecutors somehow conceded that he did not commit misdemeanor assault (Pet. at 6), that argument also fails. The prosecutors nowhere stated that Petitioner was innocent of simple assault; rather, they argued either that Petitioner should be held to answer on the charged felonies (see Lodged Doc. 1, Clerk's Tr. at 27-29) or that he should be found guilty of the greater offense of assault with a deadly weapon, which in fact encompassed all the elements of simple assault (see Lodged Doc. 3, 4 Rep.'s Tr. at 2192-93); In re Brandon T., 191 Cal. App. 4th 1491, 1498 (Ct. App. 2011) ("Misdemeanor assault is a necessarily included offense of assault with a deadly weapon."). Indeed, in closing argument, the prosecutor told the jury that "if you find [Petitioner] not guilty of assault with a deadly weapon, you can decide whether or not he's guilty of the misdemeanor assault." (Lodged. Doc. 3, 4 Rep.'s Tr. at 2192.) Thus, an independent review of the record shows that the state supreme court was not objectively unreasonable in rejecting Petitioner's challenges to the simple-assault conviction, grounds three and four.
For the reasons discussed above, habeas relief is not warranted on grounds one through five.
II. Petitioner's False-Evidence Claim Does Not Warrant Habeas Relief
In ground six, Petitioner contends that the prosecutor introduced Alcala's "fantastic testimony" at trial and "manufacture[d] a prosecution." (Pet. at 9-10.) Specifically, he contends that Alcala
couldn't get his story straight about the amount of encounters between him and the Petitioner; he lied about Petitioner being at the gas pumps; he lied about Petitioner threatening him before Petitioner entered the
store; he lied about Petitioner becoming more aggresive [sic] and angrier, which was after the so-called third encounter, and - by [Alcala's] own testimony and markings on [a photograph], demonstrated that he lied about having to move so as to avoid being hit [by the cash tray].(Pet. at 10 (emphasis in original); see also Reply at 4.) In ground seven, Petitioner points to those and other purported discrepancies in the evidence, arguing that the prosecutor knew the evidence was false and introduced it anyway. (Pet. at 10-11.)
A. Applicable Law
In Napue v. Illinois, 360 U.S. 264, 269 (1959), the Supreme Court held that "a conviction obtained through use of false evidence, known to be such by representatives of the State," violates a defendant's right to due process under the 14th Amendment. See also Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir. 2008). To establish a due process violation under Napue, a petitioner must prove that (1) the testimony was actually false, (2) the prosecution knew or should have known that the testimony was false, and (3) the false testimony was material. Id. at 1071-72. Mere inconsistencies in testimony by government witnesses are insufficient to show actual falsity under Napue. See United States v. Bingham, 653 F.3d 983, 995 (9th Cir. 2011); cf. Hamilton v. Ayers, 583 F.3d 1100, 1111 n.4 (9th Cir. 2009) (finding in context of Brady and Napue claims that "minor and unsurprising discrepancies" in witness testimony not "actual conflict"). False evidence is material if there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009) (distinguishing standard from one asking whether there was reasonable probability of different outcome).
B. Background
At the preliminary hearing, Alcala testified that he went outside to tell Petitioner to leave the gas station at around 11 p.m. on June 24, 2012, and then again about 10 minutes later. (Lodged Doc. 1, Clerk's Tr. at 17-18, 24-25.) Alcala testified that Petitioner "left after that second time," and "about two hours went by" before he returned and confronted Alcala in the store. (Id. at 18-19.)
At trial, Alcala testified that at around 11 p.m. on June 24, 2012, he went outside to tell Petitioner, who was "standing . . . by the pump area," to stop asking customers for money. (Lodged Doc. 3, 3 Rep.'s Tr. at 1544, 1547-49.) Alcala then went back in the store. (Id. at 1550.) Alcala later approached Petitioner again, told him that if he did not go away Alcala would call the police, and then went back inside the store and "didn't see him anymore." (Id. at 1551-52.) Alcala testified that he had to go outside to ask Petitioner to leave "[a]bout three times" and that "during the second time I saw that he was still hanging around out there, so I had to go out again during that same time because he was still there and he wasn't leaving." (Id. at 1552-53.) Alcala testified that "an hour, an hour and 10 minutes" passed from the first time he asked Petitioner to leave to the third time. (Id.) He testified that about two hours later, Petitioner returned and confronted him in the store. (Id. at 1553-54.)
On cross-examination, Alcala testified that Petitioner threw the cash tray directly at his head, but Alcala moved and the tray hit the wall and fell to the floor. (Id. at 1831-32.) At Petitioner's request, Alcala marked a photograph to show where he had been standing when Petitioner threw the tray and where the tray struck the wall. (Id. at 1838-40.) Alcala also testified that Petitioner threatened him before the incident in the store, stating that "[w]hen he was outside bothering people he told me to get back in" and "that [Alcala's] job was not to be outside." (Id. at 1847.) Petitioner then questioned Alcala about his testimony at the preliminary hearing:
Q. By [Petitioner]: Can you explain why you did not mention [Petitioner's earlier threats] at preliminary?
. . . .
A. Because of stress. It is very stressful with all the work that you have to do, and all the times that you have to come to court, and I work seven days a week.
. . . .
Q. [D]o you remember telling the judge at the preliminary hearing that you asked [Petitioner] to leave only twice?
A. I came to court many times for this problem and I am all stressed out.
The court: Mr. Alcala, when you testified . . . at the preliminary hearing, do you remember saying that it only happened twice; not three times?
[Witness]: Well, I could have said that. It's been a long time since then.
Q. By [Petitioner]: And the first of these two encounters was at 11:00 p.m.?
. . . .
[A.] Yes.
. . . .
Q. By [Petitioner]: And that the second encounter outside was at 11:10, 11:15; is that right?
A. 11:15, 11:20, something like that.
Q. Now you said . . . you had to ask [Petitioner] to leave three times. . . . [A]t what time was that when you had this third encounter with [Petitioner] outside?
. . . .
A. The second time that I went outside to tell him to leave I didn't go back to the store. I stayed out and I wanted to see if he was going to leave or not, and he didn't. He would continue bothering people. That's when I told him.
Q. . . . [W]here does the third encounter start and end?
A. I don't remember the exact time, but I did go out to reprimand him two or three times. I don't remember very well, but I went outside two or three times.
. . . .(Id. at 1847-50.)
Q. And the first time you asked [Petitioner] to leave, how long exactly did he hang around?
A. It's been awhile. Like in all three times that I had to ask him to leave he must have been out between 40 minutes to one hour.
The preliminary hearing took place on July 12, 2012 (Lodged Doc. 1, Clerk's Tr. at 7), and Alcala testified at trial on December 5 (Lodged Doc. 3, 3 Rep.'s Tr. at 1501, 1539).
Petitioner then called Mike Kahn, owner of the AM/PM, as a witness for the defense. (Id. at 1872.) Kahn testified that on the night of the incident, he reviewed the surveillance video of the gas-station exterior and did not see Petitioner at the pumps. (Id. at 1876, 1878-79.) By the time Khan received a subpoena for that video, however, it had already been automatically deleted by the store's surveillance system. (Id. at 1878.)
Kahn testified that he reviewed the video "the same night" of the incident, which he said was June 24, 2012 (Lodged Doc. 3, 3 Rep.'s Tr. at 1877), but Petitioner actually entered the AM/PM store and confronted Alcala in the early morning hours of June 25 (see id. at 1544-45, 1553-54).
C. Discussion
The state supreme court's rejection of Petitioner's false-evidence claim was not an objectively unreasonable application of federal law. Petitioner's argument is largely premised on minor inconsistencies in Alcala's testimony and between his testimony and Kahn's, which are insufficient to prove a Napue violation. See Bingham, 653 F.3d at 995. For example, Petitioner points to discrepancies in Alcala's testimony regarding the number of times he confronted Petitioner, the length of time between the encounters, and whether Alcala went back inside the store between those confrontations. (See Pet. at 9-11.) But on cross-examination, Alcala acknowledged that he may not have testified consistently at the preliminary hearing because he worked seven days a week, had been going to court often, and was "all stressed out." (Lodged Doc. 3, 3 Rep.'s Tr. at 1848.) Alcala also testified that he didn't remember the exact events "very well," and he acknowledged that he could have talked to Petitioner two or three times. (See id. at 1849-50.) Moreover, Petitioner admitted during closing argument that he had been panhandling at the AM/PM and that Alcala confronted him, although he argued that it had been earlier in the day and in front of the store, not by the gas pumps. (See Lodged Doc. 3, 4 Rep.'s Tr. at 2182 (stating in closing argument, "I shouldn't have been panhandling in the first place" and "[m]y panhandling has contributed to the circumstances and ultimately contributed to my predicament"); id. at 2182-83 ("I was out there at AM/PM one time earlier that day, but . . . in front of the store for like a few seconds before Mr. Alcala came out.").)
During cross-examination, Petitioner implied that Alcala had confronted him the afternoon of June 24, 2012, but Alcala testified that he didn't work in the afternoons and was not at AM/PM that afternoon. (Lodged Doc. 3, 3 Rep.'s Tr. at 1861-65.)
Thus, nothing indicates that Alcala testified falsely about the incidents leading up to the confrontation in the store as opposed to simply misremembering the precise details of them. See Daly v. Chavez, No. CV 11-1818-DSF DTB, 2013 WL 5951932, at *19 (C.D. Cal. Nov. 5, 2013) (discrepancies between witness's testimony at trial and preliminary hearing insufficient to establish Napue violation). Similarly, that a defense witness, Khan, testified that he had viewed surveillance video and had not seen Petitioner by the gas pumps also fails to establish that Alcala's testimony was false. See United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) ("that a witness may have made an earlier inconsistent statement, or that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false"). Indeed, it could have been Khan, not Alcala, who was mistaken.
Petitioner also argues that "the inference of falsity" is supported by Alcala's "own markings" on a photograph that showed that "he was in one corner, and the [cash] tray made contact with the other" with a distance of "8-10 feet between the two corners." (Pet. at 10.) But even assuming that is true, it establishes merely a potential inconsistency in Alcala's account of the incident. And in any event, the jury viewed surveillance video of the incident from different angles, so it saw first-hand what transpired in the store. (See, e.g., Lodged Doc. 3, 3 Rep.'s Tr. at 1554-58, 1813, 1820, 1826-27, 1843-44, 1851-53; see also id. at 1801-02 (discussing that video of incident encompassed numerous camera angles).) At its request, the jury viewed the video during its deliberations. (Lodged Doc. 3, 4 Rep.'s Tr. at 2401-02.) Petitioner, moreover, cross-examined Alcala at trial (Lodged Doc. 3, 3 Rep.'s Tr. at 1830-66), called Khan as a witness (id. at 1872-79), and argued some of the purported inconsistencies in closing argument (Lodged Doc. 3, 4 Rep.'s Tr. at 2164, 2182-83). Thus, the cited inconsistencies were fully explored before the jury, which apparently did not find them troubling enough not to convict Petitioner. See United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (when "two conflicting versions of the incident were presented to the jury," "[i]t was within the province of the jury to resolve the disputed testimony").
In his state court of appeal habeas petition, Petitioner asserted that the markings showed "a distance of at least (5) feet between the points." (Lodged Doc. 8 at 4.)
Petitioner's claim also fails because he points to nothing in the record showing that the prosecutor knew or should have known that Alcala's testimony was allegedly false and introduced it anyway. See Bingham, 653 F.3d at 995 (finding that petitioner cited no evidence of "intentional use of perjured testimony," and court "cannot presume that the prosecutor knew that the prior inconsistent statement was true but elicited perjured testimony anyway" (alteration and internal quotation mark omitted)); see also Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004) (as amended) ("The essence of the due process violation is misconduct by the government, not merely perjury by a witness."). Rather, Petitioner simply speculates, citing no supporting evidence, that the prosecutor "encouraged" Alcala to change his testimony or that she should have concluded, based on the cited inconsistencies, that Alcala was lying. (Pet. at 10-11.) That is not enough. See Skains v. California, 386 F. App'x 620, 621-22 (9th Cir. 2010) (rejecting Napue claim when petitioner "offers only speculation that the prosecutor knew or should have known that [witness's] impeachment testimony was inaccurate at the time it was given").
Finally, Petitioner's claim must fail because the purported inaccuracies in Alcala's testimony would not have been reasonably likely to have affected the verdict. The basis of Petitioner's convictions for burglary and simple assault was the incident in the store, which was captured from five angles on surveillance video and played several times for the jury. That evidence alone likely sufficiently supported the verdicts. See Gentry v. Sinclair, 705 F.3d 884, 904 (9th Cir.) (as amended) (rejecting false-evidence claim when "the DNA, eyewitness, and other circumstantial evidence were more than sufficient for a jury to convict [petitioner] without considering the [false] testimony"), cert. denied, 134 S. Ct. 102 (2013).
To the extent Petitioner contends that the purported inconsistencies in the testimony render his convictions unsupported by substantial evidence, that argument fails because a federal habeas court faced with a factual record "that supports conflicting inferences must presume . . . 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; see also Schlup v. Delo, 513 U.S. 298, 330 (1995) ("[u]nder Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review.").
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Habeas relief is not warranted on Petitioner's false-evidence claims in grounds six and seven.
III. Petitioner's Prosecutorial-Misconduct Claim Does Not Warrant Habeas Relief
In ground seven, Petitioner also contends that the prosecutor engaged in misconduct by misstating material facts to obtain a conviction. (Pet. at 10-11.) Most of Petitioner's arguments relate to his allegations of Napue error, which fail for the reasons discussed above. To the extent Petitioner raises a separate claim that the prosecutor misrepresented the facts in closing argument by arguing that Petitioner threw the cash tray intending to hit Alcala (see id. (contending that prosecutor "could clearly see it was inherently improbable for the drawer to have hit any part of the victim's body" but argued in closing that "the victim was over in the corner (in fear) while Petitioner was supposedly attacking him" (emphasis in original)), that argument also fails.
Prosecutorial misconduct warrants habeas relief only if it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks omitted). After establishing misconduct, a petitioner also must show prejudice, in that the misconduct "rendered the trial fundamentally unfair." See Wood v. Ryan, 693 F.3d 1104, 1116 (9th Cir. 2012). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). The alleged misconduct must be examined within the context of the entire trial. United States v. Young, 470 U.S. 1, 12 (1985).
Petitioner has failed to show that the prosecutor engaged in any misconduct or that his trial was somehow rendered fundamentally unfair. During closing argument, the prosecutor simply urged the jury to convict Petitioner based on the facts adduced at trial, arguing that the evidence - which included Alcala's testimony and the surveillance video - showed that Alcala was scared and that Petitioner threw the cash tray toward Alcala, among other things. (See, e.g., Lodged Doc. 3, 4 Rep.'s Tr. at 2151-55.) The prosecutor did not commit misconduct in doing so. Indeed, "[c]ounsel are given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom." Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996) (internal quotation marks omitted). Petitioner has failed to show that the prosecutor misstated the evidence or deprived him of any other constitutional right. See Darden, 477 U.S. at 181-82 (finding petitioner not deprived of fair trial in part because "[t]he prosecutors' argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused"). The trial court, moreover, repeatedly instructed the jury that the arguments of counsel were not evidence. (See Lodged Doc. 3, 3 Rep.'s Tr. at 1512; Lodged Doc. 3, 4 Rep.'s Tr. at 2122, 2162); Darden, 477 U.S. at 182 (finding petitioner not deprived of fair trial in part because "[t]he trial court instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence").
Petitioner is not entitled to habeas relief on this ground.
CONCLUSION
IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. DATED: March 31, 2015
/s/_________
JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE