Opinion
ED CV 21-00647-SPG (PLA)
02-07-2023
KEVIN LOUIS JOHNSON, JR., Petitioner, v. J. SULLIVAN, Warden, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
PAUL L. ABRAMS, MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Sherilyn Peace Garnett, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, the Magistrate Judge recommends that the First Amended Petition for Writ of Habeas Corpus be dismissed with prejudice.
I
PROCEDURAL HISTORY
In 2018, a Riverside County Superior Court jury convicted petitioner of preventing or dissuading a witness in furtherance of a conspiracy in violation of California Penal Code section 136.1. (Docket No. 12-1 at 151-52). After determining that petitioner had seven prior “strikes” under California's Three Strikes law (Cal. Penal Code §§ 667(a)(1), 667.5(b)), the trial court sentenced petitioner to 30 years to life in state prison. (Id. at 186, 233-35).
Prior to sentencing, the court struck four of the seven strikes but ruled petitioner was not “outside the spirit of [the] three strikes laws.” (Docket No. 12-1 at 233).
Petitioner appealed. (See Docket Nos. 12-4 through 12-12). On September 4, 2020, the California Court of Appeal remanded the matter for resentencing, but otherwise affirmed the judgment. (Docket No. 12-10). On November 18, 2020, the California Supreme Court denied review without comment or citation to authority. (Docket No. 12-14).
On remand, the trial court again sentenced petitioner to 30 years to life in prison. (Docket No. 12-15).
On April 7, 2021, petitioner filed a Petition for Writ of Habeas Corpus (“Petition”), raising four claims. (Docket No. 1). On May 28, 2021, respondent filed an Answer and a supporting Memorandum of Points and Authorities (“Answer”). (Docket No. 11). On July 29, 2021, petitioner filed a Reply. (Docket No. 15). On August 6, 2021, the Court issued a Report and Recommendation, recommending that that the claims be denied and the Petition dismissed with prejudice. (Docket No. 16). On August 25, 2021, petitioner filed objections to the Report and Recommendation, as well as a request for a stay of the federal proceedings so he could exhaust the state court remedies regarding an ineffective assistance of counsel claim based on “newly discovered evidence.” (Docket Nos. 18, 19, 20, 21). Thereafter, the Court granted petitioner a stay and ordered him to file an amended petition in this Court after the new claim was exhausted in state court. (Docket No. 24).
On November 21, 2022, petitioner filed the instant First Amended Petition for Writ of Habeas Corpus (“FAP”), raising the same four claims in the original Petition plus his new claim of ineffective assistance of counsel. (Docket Nos. 40-1, 45). On December 15, 2022, respondent filed a Supplemental Answer (“Supp. Answer”), addressing the newly added ineffective assistance of counsel claim. (Docket No. 46). On February 3, 2023, petitioner filed a Traverse. (Docket No. 47).
This matter is deemed submitted and is ready for a decision.
II
STATEMENT OF FACTS
The Court adopts the factual summary set forth in the California Court of Appeal's Opinion affirming petitioner's conviction.
The Court “presume[s] that the state court's findings of fact are correct unless [p]etitioner rebuts that presumption with clear and convincing evidence.” Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008) (citations omitted); 28 U.S.C. § 2254(e)(1). Because petitioner has not rebutted the presumption with respect to the underlying events, the Court relies on the state court's recitation of the facts. Tilcock, 538 F.3d at 1141. To the extent that an evaluation of petitioner's individual claims depends on an examination of the trial record, the Court herein has made an independent evaluation of the record specific to those claims.
In 2017, [petitioner] was in custody awaiting trial on charges of pandering a minor under 16 ([Cal. Penal Code] § 266i) and inducing a minor to commit a commercial sex act ([Cal. Penal Code] § 236.1, subd. (c)). From jail, he made a series of three phone calls that the prosecution contended amounted to attempts to cause the victim (Jane Doe) not to appear at trial to testify against him. The phone calls were recorded and played for the jury.
The first of these “significant” calls was from [petitioner] to his mother's telephone number on October 20, 2017, the day after a trial readiness conference where the trial was set for November 15, 2017. During the call, he spoke to someone identified as “Booka.” [Petitioner] referenced his trial date, and asked Booka to call someone named “Rome” to tell him that “[t]hey lookin' for both of ‘em . . . I need them two gone.”
In the same call, [petitioner] asked Booka to conference another person, “Mack,” into the call, which she did. [Petitioner] told Mack: “Hey, uh, I need you to do me a big favor.” He explained that he was going to “start trial on the 15th of next month.” He then asked Mack to “get a message” to “Little Bruh” that “him and his folks gotta . . . move. They lookin' for both of ‘em.” After some discussion of a plea deal offered by the prosecution, which [petitioner] had rejected, Mack said “That's crazy.” [Petitioner] responded: “You feel me, man? So just tell (unintelligible) whoever-well whoever got the little (unintelligible) the little woopty wap made, put-make sure that's put up, man, for the 15th, man-for sure, for sure. That's the only way I'm . . . .” Mack then asked: “they need her, huh?” [Petitioner] responded in the affirmative, and told Mack “I can beat this case.” Later in the call, [petitioner] elaborated: “I start trial on the 15th, bruh . . . for that whole week, you know what I'm sayin'? If . . . the [girl] don't show up, I'm-I'm out, period. They gonna drop the whole case against me. You get what I'm sayin'?” Mack assured [petitioner]: “Well I'm gonna get on that . . . asap.”
Later in the same call, Booka came back on the line again, and asked: “Is the thing white?” [Petitioner] responded: “No . . . she's Mexican and black.” He confirmed for Booka that they were not talking about “Miss Piggy,” and told Booka to “get her real name from Rome.” At trial, a detective testified that Jane Doe appeared African-American, and that her maternal grandmother was Spanishspeaking and had a Hispanic last name.
[Petitioner] called his mother again on November 13, 2017, and asked her to put Booka on the phone, saying “I need her to call Rome, like ASAP.” His mother asked why, and [petitioner] explained: “Because, I need to find out that girl in jail or not . . . If that girl's in jail then that mean that they're gonna bring her to my trial, you get what I'm sayin'?” His mother asked, “What girl?” [Petitioner] explained: “The victim, the girl, young-the-the little prostitute girl that I'm getting' charged for.” When Booka came on the call, [petitioner] asked if she had called Rome. When she said she had not, [petitioner] told her to “call Rome on your phone right now,” explaining that he needed to know if “that girl is in jail or not.” Booka reported back that “He said . . . he don't know, but he about to call around right now and see and call me back.” [Petitioner] responded: “And tell him I need to get that information ASAP, you get what I'm sayin'?” [Petitioner] said that he would call back the next day, and asked: “Please, do whatever it take to find that information for me. And if she's not in jail, make sure you tell them I start trial on the 15th, so I need-you know what I'm sayin'-I need them to take care of business, please.” [Petitioner] then emphasized: “Yeah, please tell him-stress-I need you to stress that hard, okay, stretch that hard to Rome. Be like, ‘Man, you feel me, what's goin' on, he need to know. He need to know because it's, ‘see what I'm sayin', I might have to take a deal. I might-you know what I'm sayin, I might just have to take a deal, but I need to know that-I need to know that information, and then if she's not in jail ....”
On November 14, 2017, [petitioner] called his mother again. He explained to his mother, when she objected to the cost of him calling so frequently: “I know, this is-will be my last phone call . . . I told Booka to tell you that I needed to call today to find out if that girl in jail or not.” When Booka came to the phone, she told [petitioner]: “Yeah, you good . . . she's not.” [Petitioner] confirmed that Booka had told “him”-apparently, Rome-that the trial was scheduled for the next day; Booka responded in the affirmative. [Petitioner] asked: “He say he know for a fact?” Again, Booka responded in the affirmative, stating: “He knows for a fact, talked to her.” After confirming he heard correctly, [petitioner] then said: “Okay. That's all I need to know. Okay. All right. Um, I'm gonna probably have somebody to tell-if I get out tomorrow, if a-if they-if they drop the charges tomorrow or whatever, I'm probably have somebody call you and just say they gonna, like, KG out so come get him.”
Doe did not appear for trial, and law enforcement was unable to locate her, even after the trial was delayed several times.(Docket No. 12-10 at 2-5).
III
PETITIONER'S CONTENTIONS
1. There was insufficient evidence to convict petitioner of dissuading a witness in furtherance of a conspiracy under California Penal Code section 136.1. (See Docket No. 45 at 7).
2. The trial court failed to correctly instruct the jury on each element of the offense. (Id.).
3. There was insufficient evidence of an “overt act” in furtherance of the conspiracy. (Id.).
4. There was insufficient evidence of an “agreement to commit a criminal act” to support the jury's finding that a conspiracy existed. (Id. at 8).
5. Trial counsel rendered ineffective assistance by failing to present witnesses in his defense at trial. (Id.).
IV
STANDARD OF REVIEW
The Petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“the AEDPA”). Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court applies the AEDPA in its review of this action. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Under the AEDPA, a federal court may not grant a writ of habeas corpus on behalf of a person in state custody “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.” 28 U.S.C. § 2254(d). As explained by the Supreme Court, § 2254(d)(1) “places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Williams, the Court held that:
Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of
materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 412-13; see Weighall v. Middle, 215 F.3d 1058, 1061-62 (9th Cir. 2000) (discussing Williams). A federal court making the “unreasonable application” inquiry asks “whether the state court's application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409; Weighall, 215 F.3d at 1062. The Williams Court explained that “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411; accord Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Section 2254(d)(1) imposes a “highly deferential standard for evaluating state-court rulings,” Lindh, 521 U.S. at 333 n.7, and “demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). A federal court may not “substitut[e] its own judgment for that of the state court, in contravention of 28 U.S.C. § 2254(d).” Id.; see also Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 366, 154 L.Ed.2d 263 (2002) (per curiam) (holding that habeas relief is not proper where state court decision was only “merely erroneous”).
The only definitive source of clearly established federal law under the AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412. While circuit law may be “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law (Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999)), only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. Williams, 529 U.S. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Furthermore, under 28 U.S.C. § 2254(e)(1), factual determinations by a state court “shall be presumed to be correct” unless the petitioner rebuts the presumption “by clear and convincing evidence.”
A federal habeas court conducting an analysis under § 2254(d) “must determine what arguments or theories supported, or, [in the case of an unexplained denial on the merits], 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].” Harrington v. Richter, 526 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (“A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.”). In other words, to obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
The United States Supreme Court has held that “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Here, petitioner raised Grounds One through Four in his direct appeal to the California Court of Appeal, which issued a reasoned opinion rejecting each of those grounds. (See Docket No. 12-10). Thereafter, the California Supreme Court summarily denied those same claims. (See Docket No. 12-14). Petitioner raised Ground Five in a state habeas petition in the Riverside County Superior Court, which rejected the claim on the merits in a reasoned opinion. (See Docket No. 43-2). Subsequent petitions raising the same claim in the California Court of Appeal and California Supreme Court were rejected summarily. (See Docket Nos. 43-4 and 43-6). Accordingly, this Court reviews the California Court of Appeal's reasoned opinion rejecting Grounds One through Four and the Riverside County Superior Court's reasoned opinion rejecting Ground Five under AEDPA's deferential standard. See Wilson v. Sellers, U.S. __138 S.Ct. 1188, 1192, 200 L.Ed.2d 530 (2018) (holding “that the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “should then presume that the unexplained decision adopted the same reasoning”).
V
DISCUSSION
GROUND TWO: JURY INSTRUCTION ERROR
The Court has addressed the claims out of order for the sake of clarity.
Petitioner claims that the trial court failed to correctly instruct the jury on the elements of the conspiracy offense. (Docket No. 45 at 7). He argues that the court's instructions on the overt acts necessary to form a conspiracy to dissuade a witness from testifying amounted to “no more than an agreement or the solicitation of an agreement” and, thus, were incomplete as a matter of law to establish a criminal conspiracy. (See Docket No. 1, Attached California Court of Appeal Brief at 40-43).
A. Background
At the close of evidence, the trial court instructed the jury on the elements of dissuading a witness pursuant to California Penal Code section 136.1. (Docket No. 12-1 at 176). The jury was further instructed that it must “decide whether the People have proved the additional allegation that [petitioner] acted maliciously and acted in furtherance of a conspiracy.” (Id. at 177). Thereafter, the court instructed the jury with the elements necessary to form a criminal conspiracy, including the commission by petitioner or Booka of at least one of the following four overt acts that helped accomplish the agreed upon crime of dissuading a witness:
i. Contacting “Mack” to help make sure that Jane Doe [ ] was hidden.
ii. Contacting “Rome” to help make sure that Jane Doe [ ] was hidden.
iii. Calling “Rome” regarding Jane Doe's [ ] whereabouts.
iv. Calling “Rome” to speak to Jane Doe [ ]. (Id. at 178). Finally, the court instructed that the jury did not have to agree on which overt act was committed or which member of the conspiracy committed the overt act and that a member of the conspiracy did not have to “personally know the identity or roles of all the other members.” (Id. at 179).
B. The California Court of Appeal's Opinion
The California Court of Appeal rejected petitioner's claim on its merits:
[Petitioner] argues that each of the four enumerated “overt acts” describe no more than a solicitation to Rome and Mack to join the conspiracy, and thus do not qualify as an overt act in furtherance of a conspiracy. [Petitioner] fails to appreciate, however, that solicitation of additional conspirators may well constitute an overt act in furtherance of a conspiracy, because it “look[s] toward the accomplishment of and manifest[s] an intent to commit the crime.” (People v. Von Villas (1992) 11 Cal.App.4th 175, 245, 15 Cal.Rptr.2d 112.) Here, as alleged by the prosecution and framed by the instruction at issue, Booka and [petitioner] conspired to make sure that any witnesses who might testify against [petitioner], including Doe, were “gone” when his trial occurred. The question for the jury was whether either [petitioner] or Booka took any overt act in furtherance of that goal. The instructions properly described soliciting Mack and Rome to join the conspiracy and help accomplish that goal as overt acts, sufficient to support the conspiracy allegation against [petitioner].(Docket No. 12-10 at 10).
C. Federal Legal Standard and Analysis
A challenge to a jury instruction based solely on an error under state law does not normally state a claim cognizable in a federal habeas corpus action. Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief.”). Rather, to merit relief, a petitioner must show not only that an error occurred, but that it so infected the entire trial the resulting conviction violated due process. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). “[I]t must be established not merely that the instruction is undesirable, erroneous or even ‘universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Whether a constitutional violation has occurred depends upon the evidence in the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir.1995).
The state appellate court determined that each of the four overt acts listed in the instructions was sufficient under state law, if proved, to satisfy the conspiracy. “[S]tate courts are the ultimate expositors of state law” and federal courts are bound by their constructions except “when it appears to be an obvious subterfuge to evade consideration of a federal issue.” Mullaney v. Wilbur, 421 U.S. 684, 691 & n.11, 95 S.Ct. 1881,44 L.Ed.2d 508 (1975) (internal quotations and citations omitted); see also Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) (holding federal courts are bound by state court rulings on questions of state law). Here, there is no evidence of subterfuge as California law clearly provides that an overt act does not need to “constitute the crime or even an attempt to commit the crime which is the conspiracy's ultimate object” or “be a criminal or an unlawful act.” People v. Profit, 183 Cal.App.3d 849, 882, 229 Cal.Rptr. 148 (Cal.App. 2 Dist. 1986). Further, state law has long held that the solicitation of an additional conspirator can constitute an overt act in furtherance of the conspiracy. See People v. Von Villas, 11 Cal.App.4th 175, 245, 15 Cal.Rptr.2d 112 (Cal.App. 2 Dist. 1992) (finding “solicitation of additional conspirators” and “requests for information regarding the victim” constitute “overt acts of a conspiracy” because the actions further the “accomplishment of and manifest an intent to commit the crime”); People v. Sconce, 228 Cal.App.3d 693, 699-701,279 Cal.Rptr. 59 (Cal.App. 2 Dist. 1991) (finding alleged overt acts consisted of defendant's pointing out intended victim to coconspirator, coconspirator's solicitation of another conspirator, and defendant's pleas to coconspirator to “take care of and kill” victim). Petitioner's argument that this Court should independently interpret state law and conclude that the overt act instructions were insufficient as a matter of law is rejected. The California Court of Appeal found that the instructions were proper and sufficient to “support the conspiracy allegation.” (Docket No. 12-10 at 10). The Court is bound by that interpretation. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (per curiam) (stating that “a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus”). Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law.
GROUNDS ONE, THREE, AND FOUR: INSUFFICIENT EVIDENCE
Petitioner contends that the evidence was insufficient to support his conviction for preventing or dissuading a witness in furtherance of a conspiracy. (Docket No. 45 at 7-8). First, he argues that his statements in the recorded jailhouse phone calls did not “collectively” support a conclusion that he was attempting to prevent or dissuade Jane Doe from testifying. (See Docket No. 1, Attached California Court of Appeal Brief at 20-40). Second, he claims there was no evidence that he or any of the alleged conspirators committed an overt act in furtherance of the conspiracy. (Id., Attached California Court of Appeal Brief at 46-49). Third, he asserts that there was no evidence that he or any of the alleged conspirators agreed to commit an illegal act. (Id., Attached California Court of Appeal Brief at 50-65).
A. The California Court of Appeal's Opinion
In denying petitioner's claim on direct appeal, the California Court of Appeal found the recorded jailhouse phone calls from petitioner provided sufficient evidence for the jury to reasonably conclude that he intended to prevent the victim from testifying:
Substantial evidence supports the jury's conclusion that [petitioner] intended to prevent or dissuade Doe from appearing at his trial to testify. Although [petitioner] often referred to Doe by a variety of epithets, some vulgar, he explained to his mother that his inquiries referenced the “victim, the girl, young-the-the little prostitute girl that I'm getting' charged for.” Moreover, [petitioner] was not just inquiring for information about whether Doe was in custody, and therefore likely to be brought to trial to testify against him, so that he could decide whether he should accept a plea deal or proceed with trial. He affirmatively, albeit obliquely, asked Mack and Rome (through Booka) to ensure that Doe did not appear: to “take care of business” by making sure that she was “put up . . . for the 15th” so that he could “beat this case.” [Petitioner's] statements, particularly given their context of calls from jail immediately in advance of trial, are reasonably interpreted as demonstrating his intent to prevent Doe from appearing to testify against him.
In arguing for a different conclusion, [petitioner] focuses on different meanings that he contends could be derived from out-of-context snippets of the recorded conversations that were the focus of the prosecution, as well as purported ambiguities arising at least in part from the use of oblique references and nonstandard, colloquial language. In context, however, the meaning of [petitioner's] statements is plain enough. The jury did not need to engage in speculation, or have the assistance of expert testimony regarding [petitioner's] nonstandard use of language, to come to a conclusion regarding his intent. At most, [petitioner] shows arguable different interpretations of his statements. That is not enough to justify disturbing the jury's verdict, even if we were inclined to agree with [petitioner's] interpretations (and we are not so inclined).(Docket No. 12-10 at 8-9 (citations omitted)).
The state appellate court also rejected petitioner's claim that there was no evidence of any overt act in furtherance of the conspiracy:
This argument rests, however, on the premise that soliciting Mack or Rome to join [petitioner] and Booka's conspiracy is insufficient, as a matter of law, to constitute an overt act in furtherance of a conspiracy....[T]hat premise is false. There was ample evidence, in the form of the recorded telephone conversations, that Booka,
at the request of [petitioner], committed each of the four alleged overt acts in furtherance of the conspiracy.(Id. at 10-11).
Similarly, the state appellate court rejected the argument that petitioner never agreed to commit a criminal act:
[Petitioner] asserts that there is no evidence he entered into any agreement to commit a criminal act, as necessary to support a finding that he acted in furtherance of a conspiracy. Again, however, this argument rests on a false premise that we have already rejected. As discussed . . . above, there is ample evidence [petitioner] intended to prevent or dissuade Doe from appearing at his trial to testify, which is a criminal act. The recordings of [petitioner's] telephone calls are reasonably interpreted to show that he intended to, and in fact accomplished that goal by enlisting Booka, Mack, and Rome to assist him. Substantial evidence supported not only [petitioner's] conviction [for preventing or dissuading a witness from testifying], but also the jury's true finding on the conspiracy allegation.(Id. at 11).
B. Federal Legal Standard and Analysis
Sufficient evidence supports a conviction if, “[v]iewing 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Due Process Clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged). In considering a claim of insufficient evidence on federal habeas review, a federal court “must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict.” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995); see also Jackson, 443 U.S. at 319, 324, 326. “If confronted by a record that supports conflicting inferences, federal habeas 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. A jury's credibility determinations are therefore entitled to near-total deference under Jackson.” Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (per curiam) (internal quotation marks and citations omitted).
Moreover, under AEDPA, the Jackson analysis is conducted “with an additional layer of deference” to the state court's decision. Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005). The federal court must determine “whether the decision of the California Court of Appeal reflected an ‘unreasonable application of Jackson and [Winship] to the facts of this case.'” Id. at 1265 (citations omitted). Consequently, a federal habeas petitioner “faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.” Id. at 1274.
On habeas review, the federal court must refer to the substantive elements of the criminal offense as defined by state law and look to state law to determine what evidence is necessary to convict on the crime charged. Jackson, 443 U.S. at 324 n.16; Juan H., 408 F.3d at 1275. California Penal Code section 136.1 prohibits knowingly and maliciously preventing or dissuading, or attempting to prevent or dissuade, a witness or victim from testifying or assisting in the prosecution of a crime. “The crime of intimidating a witness requires proof that the defendant specifically intended to dissuade a witness from testifying.” People v. Young, 34 Cal.4th 1149, 1210, 24 Cal.Rptr.3d 112, 105 P.3d 487 (2005). A jury may infer the requisite specific intent from a defendant's words and actions. Id. Furthermore, in California, conspiracy requires proof of the following: (1) an agreement between two or more people; (2) who have the specific intent to agree to conspire to commit an offense; (3) with specific intent to commit that offense; and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. People v. Morante, 20 Cal.4th 403, 416, 84 Cal.Rptr.2d 665, 975 P.2d 1071 (1999).
Here, petitioner's own statements recorded in jailhouse phone conversations with his mother, Booka, and Mack provided substantial evidence of his intent to prevent the victim from appearing at his trial. In the first phone call, petitioner told Booka the date of his trial and said, “I need them two gone.” (Docket No. 12-1 at 110-12). After Mack got on the line, petitioner said he needed a “big favor” and his “folks gotta . . . move” because his trial was starting “on the 15th of next month” and that “little woopty wap” had to be “put up” on that date. (Id. at 115-17). Petitioner told Mack that if “the bitch don't show up,” he could “beat this case.” (Id. at 117-23). He then identified the victim by her race -- “she's Mexican and black” -- to make sure that Booka knew which girl he was talking about. (Id. at 130).
Two days before trial, petitioner called his mother again to find out whether “that girl in jail or not” because he was worried “that they're gonna bring her to my trial.” (Id. at 136). Again, petitioner identified the victim -- “the little prostitute girl that I'm getting' charged for” -- and told Booka that if she's not in jail “I need them to take care of business.” (Id. at 136-38). The following day, petitioner called again “to find out if that girl in jail or not.” (Id. at 141-42). After Booka told him she “knows for a fact” that Doe was not in jail and petitioner was “good,” petitioner said he expected to “get out tomorrow” when they “drop the charges.” (Id. at 142-43).
From these conversations, the jury could reasonably conclude that petitioner intended to prevent Jane Doe from testifying against him at trial. Petitioner's argument that there are other reasonable interpretations of the evidence is unpersuasive. Even assuming that the terms and phrases used in the phone conversations were ambiguous, on habeas review this Court interprets the evidence in a light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296-97, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992). “The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict.” United States v. Mares, 940 F.2d 455, 458 (9th Cir.1991). Any ambiguities in the conversation did not undermine the reasonable conclusion that the evidence proved petitioner committed the alleged crime. See People v. Wahidi, 222 Cal.App.4th 802, 806, 166 Cal.Rptr.3d 416 (Cal.App. 2 Dist. 2013) (“If the defendant's actions or statements are ambiguous, but reasonably may be interpreted as intending to achieve the future consequence of dissuading the witness from testifying, the offense has been committed.”).
Petitioner's claim that the evidence failed to establish an overt act in furtherance of the conspiracy to prevent Doe from testifying is also unavailing. His claim is premised on the argument that the four charged overt acts -- that he or Booka contacted Mack and Rome to help make sure that Jane Doe was hidden and called Rome regarding Jane Doe's whereabouts were insufficient as a matter of law, even if proved, to constitute overt acts. As discussed previously, however, that argument is rejected. This Court must defer to the state court's interpretation of state law in which the California Court of Appeal found the listed overt acts were sufficient to establish a conspiracy. Bradshaw, 546 U.S. at 76. Furthermore, the evidence from the phone calls plainly showed petitioner asked Booka to “talk to Rome” about Doe's whereabouts and, the following day, Booka confirmed to petitioner that Rome “talked to [Doe],” so petitioner was “good.” (Docket No. 12-1 at 137, 142-43). Therefore, the Court agrees that there was “ample evidence” to establish the overt acts necessary for the conspiracy allegation under California law.
Finally, the state court reasonably rejected petitioner's claim of insufficient evidence because, as he argues, he never agreed to commit a criminal act. The evidence in the recorded phone conversations overwhelmingly shows petitioner intended to prevent Doe from testifying against him at trial and he engaged in a conspiracy with others to accomplish that goal. The fact that he was not personally involved in and did not discuss or approve the methods used to accomplish that goal does not negate his role in the conspiracy. “Other than the agreement, the only act required is an overt act by any of the conspirators, not necessarily the defendant, and that overt act need not itself be criminal.” People v. Smith, 60 Cal.4th 603, 616, 180 Cal.Rptr.3d 100, 337 P.3d 1159 (2014); see also Morante, 20 Cal.4th at 417 (finding conspirators need not be present or personally participate in the overt acts to be liable).
Accordingly, this Court finds that the state court's rejection of petitioner's insufficient evidence claims was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. Thus, habeas relief is not warranted on Grounds One, Three, and Four.
GROUND FIVE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Petitioner claims that trial counsel was ineffective in failing to investigate and present witnesses at trial. (Docket No. 45 at 8 & Attached California Supreme Court Petition at 3-4). He argues that counsel should have called his mother, Rena Johnson-Pierce, and the victim, Jane Doe, to testify in his defense. (Id., Attached Memorandum at 10-11). In support of his argument, petitioner has attached a declaration from his mother and a transcript from a post-trial hearing evidentiary hearing in which the victim testified. (Id., Attached Exhibits).
A. The Riverside County Superior Court's Opinion
In denying petitioner's claim on habeas, the Riverside County Superior Court determined that petitioner had not “set forth a prima facie case for relief” because he “failed to put forward any facts or law suggesting that counsel's representation fell below prevailing professional norms.” (Docket No. 43-2 at 3-4). The superior court found that the declaration and hearing transcript did not constitute new evidence of his innocence and was not persuasive evidence that counsel acted deficiently. (Id. at 4). Finally, the superior court held that, even if the evidence had been admitted at trial, there was no likelihood that the outcome of the trial would have been different. (Id.).
B. Federal Legal Standard and Analysis
Allegations of ineffective assistance of counsel are governed by the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first prong of that test, petitioner must prove that his attorney's representation fell below an objective standard of reasonableness. Id. at 687-88. To establish deficient performance, petitioner must show his counsel “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687; Williams, 529 U.S. at 391. In reviewing trial counsel's performance, however, courts “strongly presume[] [that counsel] rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690; Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003). Only if counsel's acts and omissions, examined within the context of all the surrounding circumstances, were outside the “wide range” of professionally competent assistance, will petitioner meet this initial burden. Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland, 466 U.S. at 690.
Under the second part of Strickland's two-prong test, petitioner must show that he was prejudiced by demonstrating a reasonable probability that, but for his counsel's errors, the result would have been different. Strickland, 466 U.S. at 694. The errors must not merely undermine confidence in the outcome of the trial, but must result in a proceeding that was fundamentally unfair. Williams, 529 U.S. at 393 n.17; Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Petitioner must prove both deficient performance and prejudice. The court need not, however, determine whether counsel's performance was deficient before determining whether petitioner suffered prejudice as the result of the alleged deficiencies. Strickland, 466 U.S. at 697.
Petitioner contends that trial counsel should have called his mother, Rena Johnson-Pierce, to testify about the phone calls he made to her home while in jail. According to his mother's declaration, made in October 2021, the phone conversations were “taken out of context” and petitioner was only trying to find information about the “alleged victim” so that Jane Doe could provide information to the courts and to petitioner's attorney to exonerate petitioner and “lead to his release.” (Docket No. 45, Attached Declaration at 71-72). Johnson-Pierce stated that she and her son would “never ever conspire . . . to harm anyone.” (Id.). Petitioner's mother's declaration amounts to nothing more than general vouching for her son's lawful intentions. For the following reasons, the Court does not find it to be remotely persuasive evidence of his lack of culpability.
First, her close relationship to petitioner and the crime itself lessens the value of any testimony. See House v. Bell, 547 U.S. 518, 552, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (noting that eyewitness testimony given by disinterested witness with “no evident motive to lie” has “more probative value” than “testimony from . . . suspects, or friends or relations of the accused”); Romero v. Tansy, 46 F.3d 1024, 1030 (10th Cir. 1995) (noting that testimony by a “defendant's family members is of significantly less exculpatory value that the testimony of an objective witness”).
Second, her suggestion that petitioner's intent on the phone calls was simply to locate the victim to obtain exonerating evidence that could be presented at court -- rather than to prevent the victim from showing up and testifying at trial -- is belied by the telephone conversations themselves. In one conversation, petitioner told Booka the date of his trial and said, “I need them two gone.” (Docket No. 12-1 at 112). Petitioner then told Mack that his trial was starting “on the 15th of next month” and that “little woopty wap” had to be “put up” on that date. (Id. at 115-17). Petitioner stated that if “the bitch don't show up,” he could “beat this case.” (Id. at 117-23). In another telephone call, petitioner asked his mother to find out whether “that girl in jail or not” because he was worried “that they're gonna bring her to my trial.” (Id. at 136). After Booka told him she “knows for a fact” that Doe was not in jail and petitioner was “good,” petitioner said he expected to “get out tomorrow” when they “drop the charges.” (Id. at 142-43). Nothing in these telephone conversations reasonably implies that petitioner was trying to locate the victim so she could assist him in proving his innocence, as petitioner's mother suggests. Rather, they clearly indicate that petitioner wanted Jane Doe not to testify because he thought the prosecution would not be able to proceed on the charges against him if she were not available. Thus, the Court agrees with the state superior court that counsel was not ineffective in failing to call Johnson-Pierce as a witness because, even had Johnson-Pierce testified, there was no likelihood that the outcome of the trial would have been different. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995) (finding no prejudice under Strickland based on counsel's failure to obtain and present “marginally relevant and indirectly beneficial evidence”).
Petitioner's assertion that counsel should have produced Jane Doe as a witness in his defense is equally unavailing. As evidence of counsel's deficiency in failing to call her to the stand, petitioner notes that in a post-trial hearing Doe testified that she did not know petitioner or even recognize him and had never used a pimp while engaging in prostitution. (See Docket No. 45, Attached Transcript at 13-14, 28-33, 43-45). Doe, however, was an uncooperative witness in this case and, on several occasions prior to trial, the prosecution was not able to locate Doe for court hearings. (See Docket No. 12-2 at 95-96). She appeared at petitioner's post-trial hearing only because she had been detained at a juvenile detention facility and, at the hearing, testified she did not want to be there. (See Docket No. 45, Attached Transcript at 10). Petitioner has put forth no evidence that Doe would have been a cooperative witness for the defense had counsel sought to call her as a witness at trial or that, even if she had testified, it would have been beneficial to petitioner. See Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (rejecting ineffective assistance claim based on failure to interview or call witness when petitioner failed to provide affidavit from witness showing he or she would have provided helpful testimony for defense); United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir.1988) (finding no ineffective assistance based upon counsel's failure to call a witness where there was no evidence in the record that the witness would have testified).
Furthermore, even if she had testified at trial as she had in the post-trial hearing, Doe's testimony that she had never seen petitioner or used a pimp was dubious at best. During the hearing, Doe was unable to explain why she had a phone contact for “Daddy”-- a term she admitted referred to a pimp -- with a money bags emoji next to it. (Docket No. 45, Attached Transcript at 31-33). Nor could she explain why petitioner's phone and her phone were in the same area at the same time in multiple cities where she ran ads for prostitution. (Id. at 24-29). Finally, Doe's testimony -- even if believed -- would not have negated any of the elements of his conviction for preventing or dissuading a witness in furtherance of a conspiracy. The assertion that Doe did not know petitioner or know that he had conspired with others to prevent her from testifying was not relevant to petitioner's criminal culpability in a conspiracy charge. For all these reasons, petitioner has failed to demonstrate that trial counsel was constitutionally ineffective for failing to call Doe as a witness for the defense. See United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (finding counsel not ineffective for failing to call witnesses without evidence of “how their testimony might have changed the outcome of the hearing”).
Under California law, the prosecution needed to prove that petitioner engaged in a conspiracy to prevent or discourage Jane Doe from testifying at his trial, that she was a witness or crime victim, and that petitioner intended to prevent or discourage her from giving testimony at the trial. (See Docket 12-1 at 176).
In his Traverse, petitioner asserts for the first time a claim that counsel was ineffective for failing to call Booka, Mack, and Rome -- alleged co-conspirators in the attempt to dissuade Doe from testifying -- as witnesses at his trial. (Docket No. 47 at 2-3). Petitioner argues that these witnesses would have testified that the prosecutor misinterpreted the words in the recorded phone calls; for example, the term “woopty wap” is not a reference to a prostitute. (Id. at 3). Although it is improper to assert new grounds for relief in a traverse, the Court elects to exercise its discretion and address the claim because it clearly fails on its merits. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994); Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002).
Here, petitioner's claim is completely speculative. He provides absolutely no evidence that any of these alleged co-conspirators would have testified at his trial, let alone evidence that they would have provided beneficial testimony that would have affected the outcome of his case. Without that, petitioner cannot establish that counsel was ineffective for failing to call them at trial. See Dows, 211 F.3d at 486, Harden, 846 F.2d at 1231-32; see also Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (holding mere speculation that witness might have given helpful information if interviewed is not enough to establish ineffective assistance).
Accordingly, this Court finds that the state court's rejection of petitioner's ineffective assistance of trial counsel claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. Thus, habeas relief is not warranted on Ground Five.
VI
RECOMMENDATION
It is recommended that the District Judge issue an Order: (1) accepting this Report and Recommendation; and (2) directing that judgment be entered denying the First Amended Petition and dismissing this action with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but are subject to the right of any party to file Objections as provided in the Local Rules Governing Duties of Magistrate Judges, and review by the District Judge whose initials appear in the docket number.No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the Judgment of the District Court.
The District Judge will consider both the objections to the original Petition (Docket No. 18), as well as any additional objections petitioner may timely submit in response to Ground Five in the instant First Amended Petition.