Opinion
CV 23-2260-SVW(E)
02-08-2024
RONALD L. LOPEZ, Petitioner, v. B. PHILIPS, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On March 27, 2023, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" ("Petition") (Doc. 1). On April 20, 2023, Respondent filed a Motion to Dismiss the Petition for failure to exhaust state remedies as to Claims Five and Six of the Petition (Doc. 8). On May 22, 2023, Petitioner filed an Opposition to the Motion (Doc. 17).
On June 2, 2023, the Court issued an "Order Re Exhaustion," which directed Petitioner to file either: (1) a document indicating his intent to delete and abandon Claims Five and Six; (2) a document requesting dismissal of this entire proceeding without prejudice; or (3) a motion to stay these proceedings (Doc. 18). On June 26, 2023, Petitioner filed a "Motion to Delete, etc.," in which Petitioner elected to delete and abandon Claims Five and Six (Doc. 19). On July 6, 2023, the Court issued an order deeming Claims Five and Six dismissed and ordering Respondent to file an Answer to Claims One through Four (Doc. 20).
On August 14, 2023, Respondent filed an Answer (Doc. 24). On October 2, 2023, Petitioner filed "Petitioner's Traverse, etc." ("Reply") (Doc. 31).
BACKGROUND
On June 16, 2017, a Superior Court jury found Petitioner guilty of first degree murder (Count 1), three counts of conspiracy to commit murder (Counts 2, 17 & 19), conspiracy to commit extortion (Count 3), two counts of attempted murder (Counts 16 & 18), nine counts of extortion (Counts 4-12), and one count of being a felon in possession of a firearm (Count 14) - The jury found true the allegations that Counts 1 through 12 and 16 through 19 were gang-related and that a principal personally used a firearm during the commission of Counts 1 and 2 (Clerk's Transcript ("C.T.") 1428-39). Petitioner admitted two prior serious felony convictions that qualified as "strikes" under California's Three Strikes law (Reporter's Transcript ("R.T.") 275657). Petitioner was sentenced to 535 years to life in state prison (C.T. 1588-98, 1611-18; R.T. 2782-87) .
Petitioner had been tried jointly with co-defendants Sheldon McMorries and David Solorio.
In a reasoned opinion, the California Court of Appeal struck certain fines, but otherwise affirmed (Doc. 9-2). The California Supreme Court summarily denied review (Doc. 9-4, 9-5).
The California Court of Appeal later issued an order slightly modifying the opinion, but the modification did not alter the judgment (Doc. 9-3).
SUMMARY OF TRIAL EVIDENCE
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Lopez, B289194 (Doc. 9-2). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.l (9th Cir. 2009).
C. Overview of the Mexican Mafia.
At trial, Francis Hardiman, a gang expert with the Los Angeles County Sheriff's Department, testified about the Mexican Mafia's structure and function.
According to Hardiman, the Mexican Mafia, or Erne (Spanish for the letter M), was first organized in the 1950s in state prisons. Originally, the Mexican Mafia operated only in prisons, but beginning in the 1990s, it extended its reach outside to the County jails and into the streets. The Mexican Mafia sent paroled members as emissaries to the street gangs to tell them their criminal activities fell under the Mexican Mafia's control, and the gangs would have to pay the Mexican Mafia "taxes" if they wanted to commit crimes in those areas. Moreover, the Mexican Mafia would force local street gangs to sell the Mexican Mafia's drugs. If taxes were not paid by a street gang, when its members came to prison, they would be given the "green light" (ordered killed) by the Mexican Mafia. Also, people who failed to pay taxes or skimmed taxes collected might have a "green light" put on them to send a message to other street gang members.
The Mexican Mafia employs a hierarchical structure. The highest level consists of the 150 to 200 actual "members." Most of the members of the Mexican Mafia are serving life terms and rely on others on the outside to commit crimes for the organization. Below the members are "camaradas" and "secretaries" who work directly with the members. The bottom tier level consists of soldiers ("Surenos," or "South Siders"). A camaradas, as a second-tier Mexican Mafia associate, works closely with a Mexican Mafia member.
On a local level, gang members tax individuals in a specific area under the direction of a crew chief. Collections are made from those engaging in criminal activity in the neighborhood. Generally, an incarcerated member would give orders to a second-tier gang member, who in turn would carry the message to a crew chief. The crew chief would delegate to his crew.
D. Tonito's Crew.
. . . [Petitioner] is Tonito's younger brother and was Tonito's second in command. McMorries (nicknamed "Goofy") had tattoos signifying membership in the Mexican Mafia, as did Solorio (nicknamed "Blackie") and [Petitioner] (nicknamed "Dave"). Solorio and [Petitioner] were camaradas, while McMorries was a soldier. Tonito's crew collected taxes at the beginning of each month.
Lisa Robles was Tonito's girlfriend. In approximately 2007 she met [Petitioner]. Robles began to collect taxes in Newhall and sent the money to [Petitioner]. She met Solorio in 2008 through Tonito, and conveyed messages from [Petitioner] and Solorio to Tonito. They also spoke about Mexican Mafia business.
Tonito told Solorio that Solorio was a "camarada." Tonito gave Solorio the authority to handle problems he had with someone. "You . . . handle it however you think you need to handle it, but don't let nobody know about it. Just deal with it."
Solorio put Ovidio Salazar (nicknamed "Flaco") in charge of collecting taxes in 2009, and Salazar reported to Solorio and [Petitioner]. Salazar, who had started as a member of the Garden View Locos gang, collected taxes in Bell Gardens, Pasadena, and the Harbor area. He delivered the taxes to [Petitioner]. Salazar began working for [Petitioner] in May 2009, after a stay in prison. Sometime in 2010, [Petitioner] appointed Knight the tax collector for the Harbor area.
Michael Franco (nicknamed "Boxer") collected taxes for Tonito from 2002 to 2007. Franco delivered taxes to and reported to [Petitioner]. Franco testified at trial that local Hispanic gangs could agree with the Mexican Mafia to pay taxes, in exchange for which the local gang could use "13" in its name and expect the Mexican Mafia to enforce the gang's right to sell drugs in its territory.
Franco also testified there were rules within the Mexican Mafia about killing local gang members for not turning over collected taxes. The "big homie" or top Mexican Mafia member, would need to authorize any killing and would only do so with the proper "paperwork," namely, evidence establishing a rules violation. In the case of a snitch, the paperwork would include any type of police report, or a court transcript showing cooperation with law enforcement.
According to Franco, if taxes were not paid, people could end up paying a lot of money, or they could lose their car, their house, or their life. About 90 percent of collectors skimmed, but few were disciplined. Merely skimming would not warrant severe punishment. Tonito's crew did not like to kill people because it would attract the attention of law enforcement.
E. Local Activities of Mexican Mafia: Investigation.
A task force consisting of local police agencies and federal agents from the Department of Homeland Security began investigating the Mexican Mafia in the Bell Gardens area. In 2006, Detective Dano Neslen of the Bell Gardens Police Department used informants, surveillance, and recordings of prison phone calls in his investigation. Detectives wiretapped approximately 16 phones over the course of the investigation. In gang cases, phones often are switched or "flipped" to evade detection.
Neslen obtained wiretaps and learned appellants were working as part of Tonito's crew. As a result of listening to many hours of wiretaps, Detective Neslen could identify the appellants' voices.
Salazar was initially the subject of the wiretaps but later became an informant. Salazar was released from jail in June 2010 and wore a wire when he met with all appellants from October 18, 2010, to approximately September 19, 2011.
Salazar was recruited by Neslen as an informant in 2010 when Salazar had legal problems. Salazar was paid $11,500 for his work.
During 2008 through 2010, Detective Neslen listened to Tonito's phone calls with Mexican Mafia members. In 2009, he intercepted voice and text messages on [Petitioner]'s and Solorio's phones.
E. Events Leading to the Shooting of Knight.
1. Knight Fails to Turn Over Tax Collections.
The victim William Knight was a tax collector for Tonito. In 2010, Knight was put in charge of tax collecting for the Harbor area. Knight had not turned over his collections for at least a month before his July 2010 murder.
Detective Neslen heard conversations between victim Knight and Solorio regarding taxes. Knight also spoke to McMorries.
In May 2010, Solorio told Knight that Salazar was in custody. Knight and Solorio spoke regarding Knight's failure to deliver tax money. To explain the shortfall, Knight informed Solorio the $2,000 he had collected for the month was taken by police when he was arrested. Knight planned to pick up three neighborhoods the next month, and he was going to have each neighborhood contribute an additional $100 to make up the shortfall.
2. The Crew Discusses Knight.
In late June 2010, Solorio told [Petitioner] he had not been able to reach Knight on his phone. A few days later, Knight told Solorio he had lost his phones. Knight told Solorio that "I got it still" and "the next one is already coming up," which referred to June and July taxes. Solorio told Knight they were "over here asking for it" and "we're both asking for it, homie." Neslen believed this referred to the late June taxes, and that both Solorio and [Petitioner] were looking for Knight's tax collection.
On June 29, 2010, Solorio called Knight and questioned him about the tax money. Knight responded that he "gotta live too." Solorio responded that Knight should consider stepping down. Knight complained that a lot of people were being arrested, and he received a visit from "Fox," who threatened him based on a drug debt unrelated to the Mexican Mafia. Knight sent a text message to Solorio telling him he was not stepping down. According to Neslen, Knight always had an excuse for failing to turn over the taxes. Neslen believed Knight was not skimming but simply not turning over the money.
Solorio called [Petitioner] and told him to contact Knight. [Petitioner] responded that he would call Knight and pick up the taxes. Solorio gave [Petitioner] Knight's phone number.
Knight called Robles and asked for help because he was in trouble with Solorio and [Petitioner]. Robles responded that she would talk to them and try to work out a payment plan. Robles spoke to Solorio and asked what Knight could do to rectify the situation. Solorio said Knight was "through" and she should not talk to him anymore. Robles believed this meant Knight was going to be killed.
On June 30, McMorries asked whether Knight had turned over any money. McMorries told Solorio that Knight had been told over and over to turn over the money but had not done so. McMorries was aware that Knight had been asking for an extra $100. According to Neslen, Knight was going against the rules.
Solorio told McMorries to contact people paying taxes to Knight to let them know there would be a change. Solorio and McMorries agreed to meet later that day. McMorries told Solorio he was "more than willing." Neslen believed that because Solorio had told McMorries it was a "wrap," Knight was going to be killed. Neslen made arrangements to have Knight detained.
On July 1, 2010, McMorries told Solorio that Knight had called him and asked for money. [Petitioner] and Solorio then spoke on the phone and [Petitioner] told Solorio they needed to talk about what McMorries had told him the previous day.
On July 3, 2010, McMorries called Solorio to tell him "everything's cool" and that Knight "was confident" he was cool. Neslen believed this meant that McMorries was trying to make Knight comfortable so that he could use the element of surprise to facilitate killing Knight.
Neslen testified that on July 4, 2010, Solorio used the terminology "that's a wrap" to describe a "green light" on an inmate in prison. Several days later, the inmate was stabbed.
D. July 5, 2010, Killing of Knight
Early in the afternoon of July 5, 2010, McMorries and Solorio met at a Carl's Junior in Monterey Park[.] Officers followed Solorio to the Carl's Junior. After Solorio and McMorries left the Carl's Junior, officers followed McMorries to his house but stopped the surveillance because McMorries lived on a cul de sac. Officers attempted to find Knight.
On July 5, 2010, at 10:19 p.m., police responded to a "shots fired" call. Knight's body was found next to his car on 219th Street in Torrance. Police recovered Knight's phone and six .45 caliber shell casings from the scene. There were no security cameras in the area, and no one witnessed the shooting. Knight died from multiple gunshot wounds.
Knight's phone contacts contained appellants' phone numbers listed under their gang monikers: Solorio ("Black"), [Petitioner] ("T Bro") and McMorries ("Disney"). McMorries had called Knight three times on July 5, at 9:58 p.m., 10:11 p.m., and 10:13 p.m. The last phone call from Knight's phone was to McMorries.
Shortly after the shooting, McMorries called Solorio several times, but Solorio did not answer. Finally, at 10:33 p.m., Solorio answered and McMorries told him "hey, it's done, dog." Solorio responded, "you're done," to which McMorries replied, "done." A few minutes later, Solorio sent McMorries a text asking, "did everything go smooth?" and McMorries responded, "yes." At 10:56 p.m., Solorio sent a text to [Petitioner] telling him to "get rid of the phone."
Neslen, who was monitoring these calls and texts in real time, believed Knight had been murdered. Neslen contacted law enforcement in the area. Neslen later heard from Detective David Cortez that Knight was the victim. Neslen and Cortez met and Neslen informed Cortez about the wiretapping. McMorries was named as a suspect.
E. Investigation into Knight's Shooting.
Phone records and cell tower triangulation established that between 9:44 p.m. and 10:13 p.m. on July 5, 2010, McMorries' phone was near a cell tower close to the scene of Knight's death. About ten minutes later, his cell phone connected with towers closer to McMorries' home.
On July 6, 2010, McMorries was arrested. During a search of his home, police found .45 caliber ammunition, methamphetamine, and a narcotics scale. Salazar called Solorio for information, saying he had heard gossip. Solorio told Salazar that McMorries was in the Central Jail in the same module. While in jail, Salazar met McMorries in the laundry room. McMorries confessed to Salazar that he had shot Knight because Knight was collecting taxes but not turning them over. McMorries had killed Knight because [Petitioner] and Solorio had come to a mutual agreement that Knight had to be killed. Further, Knight's girlfriend was a snitch and they had told Knight to kill her, but he had not done so.
Before this time, Salazar had not met McMorries.
This conversation was not taped.
McMorries explained that, on the night of the shooting, he had set up a meeting with Knight in Knight's neighborhood. When he arrived, Knight was leaning against his car texting. Knight looked up, and McMorries shot him. McMorries took Knight's gun and left.
On August 23, 2010, McMorries and Salazar were placed in a cell together and their conversation was taped. McMorries and Salazar discussed Knight's shooting and the presence of an unknown "snitch." McMorries said he was upset because he had not told anyone about the shooting. McMorries believed someone was going to "flip" and go into protective custody. McMorries and Salazar believed Knight's girlfriend was the snitch. Salazar was released from jail on October 18, 2010. As part of his plea agreement, he agreed to wear a wire while continuing to work as a tax collector for Tonito. Neslen conducted surveillance of Salazar. After collecting money, Salazar would turn it over to [Petitioner] or Solorio.
During the time McMorries was in jail, Salazar met with [Petitioner] and Solorio. They discussed Mexican Mafia business, including territories and crimes being committed by other gang members. They also met with other Mexican Mafia members and discussed business.
Solorio told Salazar that local gangs were complaining about Knight because he was collecting too often and asking for too much money. Solorio believed Knight was a drug addict. Salazar believed Solorio and McMorries had formulated a plan to kill Knight's girlfriend but had not decided who would do it.
In late January 2011, Salazar met with [Petitioner] and discussed Mexican Mafia business. Salazar told [Petitioner] that during a meeting he had with Robles and Solorio, Robles asked about Knight and Salazar mentioned he was not with them anymore. [Petitioner] responded that Robles did not need to know about Knight and should not be asking about it.
In mid-March 2011, Salazar met with Solorio and Solorio told him he had been visited by the police who were investigating Knight's murder. Police told Solorio they believed he had information about Knight's killing. Officer Cortez interviewed Solorio in mid-March 2011 and showed him a pyramid diagram labelled "Organizational Chart" with lines connecting McMorries and Knight to Solorio.
Salazar met with [Petitioner] on March 22, 2011 and they spoke about Solorio's visit from the police. Salazar said he was going to tell Solorio to "step back" and [Petitioner] agreed.
At that time, McMorries had been jailed on a parole violation. McMorries was released in May 2011. On May 20, 2011, Salazar met with [Petitioner] and asked whether he had met with McMorries. [Petitioner] confirmed he had. [Petitioner] complained McMorries was "running his mouth" and talking to many people.
On June 28, 2011, Salazar, Solorio, McMorries and other members of the crew met. McMorries had multiple guns and had a grenade for sale. He revealed he had a van for disabled people with multiple compartments where he kept the guns. McMorries told them he still had Knight's Glock and that he took the gun when Knight was killed.
On July 11, 2011, Salazar met with McMorries under the pretext of buying a gun, but he in fact was attempting to find out about Knight's gun. McMorries told him about the police visit to Solorio's house and the pyramid. Salazar believed McMorries told him he had destroyed three .45s, and Salazar interpreted this to mean that McMorries had gotten rid of Knight's gun. McMorries was no longer collecting taxes because he did not want "his name out there."
McMorries was arrested again on July 13, 2011, for a parole violation. On July 20, 2011, Solorio and [Petitioner] discussed McMorries' arrest. Solorio and [Petitioner] were arrested April 12, 2012.
On September 14, 2014, appellants were being transported to the Long Beach courthouse together. They encountered a Mexican Mafia member who was a witness in an arson case and in protective custody. The witness was acquainted with McMorries. Appellants asked the witness if he could stab Salazar. Salazar later learned appellants told the witness they would take the "green light" off him if he killed Salazar.
We discuss the attempted murder counts and the extortion counts in detail later in this opinion.
Each defendant put on his own defense.
Sandra Gonzalez, the mother of McMorries' son, testified that McMorries and Knight were friends and Knight came to their house often.
On the day of Knight's shooting, between 6:00 to 7:00 p.m., Knight came by Gonzalez's house looking for McMorries. McMorries was out at the time, having left at about 1:00 p.m. that day, but he was there later that evening. They went to Carson Street between 7:00 and 9:00 p.m. to pick up drugs. McMorries was home with her at 10:19 p.m.
With respect to the charges that [Petitioner] and Solario [sic] conspired to have two county jail inmates, James Arellano and Daniel Bugarin, killed, two officers on the jail bus testified they would have reported any conversation to solicit harm. Santiago Sencion, one of those who attacked Arellano, denied any involvement with the Mexican Mafia and testified he slapped Arellano because Arellano called him a "bitch."
Martin Flores, a gang expert, testified the Mexican Mafia was originally formed to protect Hispanic prisoners. The Mexican Mafia is not a "unitary" organization. Thus, not every member treats their "business" or crew in the same way. "Taxes" are paid for many reasons. The Mexican Mafia controls every prison in the state, and taxes ensure that if local gang members go to prison, they are protected from other prison gangs. In that sense, "taxes" are not extortion.
G. Verdict and Sentencing.
* * * *
3. [Petitioner].
The jury found [Petitioner] guilty of first-degree murder and 16 other counts and found true the special allegations concerning firearm use and gang participation.
The trial court sentenced [Petitioner] to an aggregate term of 535 years to life. . . .(Doc. 9-2, pp. 6-19).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The admission of allegedly unreliable hearsay statements assertedly violated Petitioner's due process rights (Claim One);
2. The evidence allegedly was insufficient to support Petitioner's extortion convictions (Claim Two);
3. The evidence allegedly was insufficient to support Petitioner's convictions for conspiracy to murder, and the attempted murders of, Arellano and Bugarin (Claim Three);
4. A particular jury instruction assertedly violated Petitioner's due process rights (Claim Four).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000) .
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application" prong of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts) .
"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert, dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas 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 this Court." Harrington v. Richter, 562 U.S. 86, 102 (2011). This is "the only question that matters under § 2254(d)(1)Id. (internal quotations and citation omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus 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; see also Shinn v. Kayer, 592 U.S. Ill. 112 (2020) (per curiam). "If this rule means anything, it is that a federal court must carefully consider all the reasons and evidence supporting the state court's decision." Mays v. Hines, 592 U.S. 385, 391 (2021).
In applying these standards, the Court looks to the last reasoned state court decision. See Brown v. Davenport, 596 U.S. 118, 141 (2022) (under AEDPA, federal habeas court must "assess the reasonableness of the last state-court adjudication on the merits of the petitioner's claim") (citation and quotations omitted); Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . 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 this Court." Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).
Where the state courts do not reach the merits of a federal claim, "the claim is reviewed de novo." Cone v. Bell, 556 U.S. 449, 472 (2009); see also Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004). Moreover, federal habeas courts may "deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review." Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (citation omitted).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
Here, the California Court of Appeal rejected Claims One and Two in a reasoned decision on direct appeal, and the California Supreme Court denied review summarily (Doc. 9-2, 9-3, 9-4, 9-5). Thus, the Court of Appeal's decision is the relevant adjudication for purposes of the section 2254(d) review of Claims One and Two. See Brown v. Davenport, 596 U.S. at 141-42; Wilson v. Sellers, 138 S.Ct. at 119397. The state courts do not appear to have directly adjudicated the merits of Claim Three or Claim Four, and so this Court reviews these claims de novo. See Cone v. Bell, 556 U.S. at 472; Lewis v. Mayle, 391 F.3d at 996.
DISCUSSION
For the reasons discussed below, Petitioner is not entitled to federal habeas relief.
The Court has read, considered and rejected all of Petitioner's arguments. The Court discusses Petitioner's principal arguments herein. The Court assumes arguendo Petitioner has not procedurally defaulted any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997); Ayala v. Chappell, 829 F.3d 1081, 1095-96 (9th Cir. 2016), cert, denied, 583 U.S. 890 (2017); Franklin v. Johnson, 290 F.3d 1223, 1232-33 (9th Cir. 2002). To the extent any of Petitioner's claims may be unexhausted, the Court denies the claims as not "colorable." See Cassett v. Stewart, 406 F.3d 614, 623 (9th Cir. 2005), cert, denied, 546 U.S. 1172 (2006) (federal habeas courts may deny on the merits unexhausted claims that are not "colorable").
I. Petitioner Is Not Entitled to Federal Habeas Relief on Claim One.
In Claim One, Petitioner argues that the trial court's admission of McMorries' statements to Salazar regarding Knight's murder violated Petitioner's due process right to a fair trial because the statements assertedly were unreliable. (Doc. 1, pp. 7-10; Doc. 31, pp. 9-10; see also Doc. 27-44, pp. 78, 81-85). Petitioner argues that "reliance on multiple levels of hearsay originating with in-custody paid informants [Salazar] and traveling through codefendants was so unreliable as to violate the due process requirement that guilt be proven with reasonabl[y] reliable evidence" (Doc. 31, pp. 9-10; see also Doc. 1, p. 10).
The Reply and attachments thereto do not bear consecutive page numbers. The Court uses the ECF pagination when referring to the Reply or the attachments thereto.
A. Governing Legal Standards
It is well established that "federal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citation and internal quotations omitted). Thus, a claim that the admission of evidence violated a petitioner's due process rights ordinarily "is no part of a federal court's habeas review of a state conviction." Id.; see also Rhoades v. Henry, 638 F.3d 1027, 1034 n.5 (9th Cir.), cert, denied, 565 U.S. 946 (2011) ("[E]videntiary rulings based on state law cannot form an independent basis for habeas relief.") .
"Habeas relief is [potentially] available for wrongly admitted evidence only when the questioned evidence renders the trial so fundamentally unfair as to violate federal due process." Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993) (as amended), cert. denied, 510 U.S. 1191 (1994); see also Estelle v. McGuire, 502 U.S. at 72, 75; Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995) . However," [u] nder AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by clearly established Federal law, as laid out by the Supreme Court." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citation and internal quotations omitted). Habeas relief for erroneously admitted evidence is usually unavailable because "[t]he Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Id. Indeed, the Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id.; see also Munoz v. Gonzales, 596 Fed.Appx. 588, 589 (9th Cir. 2015) (same); Spencer v. California, 512 Fed.Appx. 682, 685 (9th Cir.), cert, denied, 571 U.S. 847 (2013) (denying claim challenging admission of evidence "[a]s there is no Supreme Court authority which has clearly established that the admission of evidence can violate due process") (citation omitted); Greel v. Martel, 472 Fed.Appx. 503, 504 (9th Cir. 2012) ("There is likewise no clearly established federal law that admitting prejudicial evidence violates due process.").
More specifically for purposes of the present case, "there is no Supreme Court case establishing the fundamental unfairness of admitting multiple hearsay testimony." Zapien v. Davis, 849 F.3d 787, 794 (9th Cir. 2015), cert, denied, 583 U.S. 838 (2017) (citing Holley, 568 F.3d at 1101); see also Desai v. Booker, 732 F.3d 628, 631 (6th Cir. 2013), cert denied, 572 U.S. 1151 (2014) ("The Supreme Court has not held that the admission of the type of evidence at issue here, a codefendant's nontestimonial hearsay confession, violates due process based on its lack of reliability."). Therefore, a due process claim challenging the admission of such testimony fails under the AEDPA standard of review. Id.
B. Background
At trial, Ovidio Salazar testified as follows:
In 2010, Salazar worked as a tax collector in Tonito's crew (R.T. 697-98). In June of 2010, Salazar was arrested on drug and weapons charges and was held in Men's Central Jail (R.T. 714, 716). In July of 2010, Salazar called Solorio from jail because Salazar had heard a rumor concerning Knight (R.T. 715). Solorio told Salazar that McMorries was in the same jail module as Salazar, and Salazar should get in contact with McMorries to learn what happened with Knight (R.T. 715). Shortly thereafter, Salazar met McMorries in the jail laundry room (R.T. 716). McMorries confessed to killing Knight and gave specific details concerning the killing (R.T. 717-18, 719-23). McMorries indicated that Petitioner and Solorio "came to a mutual agreement" that Knight would be killed because Knight was not turning in tax money, among other reasons (R.T. 718-21). McMorries stated that, after receiving word from Petitioner and Solorio to kill Knight, McMorries met with Knight and shot Knight to death (R.T. 721-22). One or two days after Salazar's conversation with McMorries in the jail laundry room, Salazar spoke with Bell Gardens Police Detective Dano Neslen and agreed to cooperate with law enforcement (R.T. 723).
At trial, Petitioner made hearsay objections to Salazar's testimony regarding the jailhouse conversation with McMorries (R.T. 718, 721). The trial court ruled the testimony admissible under several hearsay exceptions, including the exceptions for declarations against penal interest (Cal. Evid. Code § 1230), co-conspirator statements (Cal. Evid. Code § 1223), and party admissions (Cal. Evid. Code § 1220) (R.T. 728-32; see also Doc. 9-2, p. 34).
C. The Court of Appeal's Decision
The Court of Appeal rejected Petitioner's claim that the admission of Salazar's testimony regarding his jailhouse conversation with McMorries violated due process:
[Petitioner] argues unreliable evidence does not become reliable simply because its admission does not violate Crawford [v. Washington, 541 U.S. 36 (2004)]; rather, the admission of such evidence can constitute a violation of the due process clause of the Fourteenth Amendment. This argument lacks merit. State law error in admitting evidence does not violate due process unless the error renders defendant's trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 439, 439.) As we have rejected [Petitioner]'s arguments concerning the admission of this evidence under state law principles and found no error and no prejudice, we reject this contention as well.(Doc. 9-3, pp. 1-2).
D. Analysis
Petitioner's claim fails under the AEDPA standard of review. The Court of Appeal's denial of Petitioner's due process claim was not contrary to or an unreasonable application of clearly established federal law. The Supreme Court has never held that an informant's testimony regarding unrecorded incriminating hearsay statements is inherently unreliable or that the admission of such testimony violates due process. On the contrary, the Supreme Court has recognized that "the potential unreliability of a type of evidence does not alone render its introduction at the defendant's trial fundamentally unfair." Perry v. New Hampshire, 565 U.S. 228, 245 (2012); see also Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009) (declining to "craft a broa[d] exclusionary rule for uncorroborated statements obtained [from jailhouse snitches]," even though "rewarded informant testimony" may be inherently untrustworthy). Thus, the AEDPA standard of review precludes Petitioner's claim regarding the challenged testimony. See Carey v. Musladin, 549 U.S. 70, 74 (2006); Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009); see also Zapien v. Davis, 849 F.3d at 794; Desai v. Booker, 732 F.3d at 631.
In an attempt to support his contrary argument, Petitioner invokes Michigan v. Bryant, 562 U.S. 344 (2011) ("Bryant"). Petitioner appears to rely on a footnote in Bryant, which states: "Of course the Confrontation Clause is not the only bar to admissibility of hearsay statements at trial. State and federal rules of evidence prohibit the introduction of hearsay, subject to exceptions. Consistent with those rules, the Due Process Clauses of the Fifth and Fourteenth Amendments may constitute a further bar to admission of, for example, unreliable evidence." Id. at 370 n.13. However, the holding in Bryant addressed only the admissibility of statements under the Confrontation Clause. The Bryant Court's dicta regarding what "the Due Process Clauses" "may constitute" cannot furnish "clearly established" law for purposes of the AEDPA. See Williams v. Taylor, 529 U.S. 362, 412 (2000) (only Supreme Court holdings constitute clearly established federal law); see also Allen v. Montgomery, 2020 WL 8265500, at *15 (C.D. Cal. Oct. 23, 2020), adopted, 2021 WL 259436 (C.D. Cal. Jan. 25, 2021) (the Supreme Court's statements in Bryant regarding due process are dicta for purposes of claims brought under AEDPA); Phipps v. McDowell, 2019 WL 4920961, at *16 (C.D. Cal. Aug. 16, 2019), adopted, 2019 WL 4918268 (C.D. Cal. Sep. 26, 2019) (same).
In sum, the California Court of Appeal's rejection of Claim One was neither "contrary to," nor "an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86 (2011). Petitioner is not entitled to federal habeas relief on Claim One.
II. Petitioner Is Not Entitled to Federal Habeas Relief on Claim Two or Claim Three.
Petitioner challenges the sufficiency of the evidence to support Petitioner's extortion convictions (Claim Two) and Petitioner's convictions for the conspiracies to murder, and attempted murders of, Arellano and Bugarin (Claim Three). These claims do not merit federal habeas relief.
A. Governing Legal Standards
On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert, denied, 423 U.S. 1062 (1976) (citations and internal quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979) ("Jackson"). A verdict must stand unless it was "so insupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 566 U.S. 650, 655 (2012).
Jackson establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence presented at trial in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). At this step, a court "may not usurp the role of the finder of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court 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." Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 566 U.S. at 655 ("Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts") (citation and internal quotations omitted); Cavazos v. Smith, 565 U.S. 1, 2 (2011) ("it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial"). The State need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).
At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted; original emphasis).
In applying these principles, the federal habeas court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Coleman v. Johnson, 566 U.S. at 655; see also Maquiz v. Hedgpeth, 907 F.3d 1212, 1218 (9th Cir. 2018). The Court "must consider all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously." McDaniel v. Brown, 558 U.S. at 131 (citation omitted). The Court must conduct an independent review of the record when a habeas petitioner challenges the sufficiency of the evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). This Court has conducted such an independent review.
As to Claim Two, which the Court reviews under the AEDPA standards, the Supreme Court has "made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference." Coleman v. Johnson, 566 U.S. at 651; see also Parker v. Matthews, 567 U.S. 37, 43 (2012) (combination of AEDPA standard of review and Jackson standard imposes a "twice-deferential standard"); Johnson v. Montgomery, 899 F.3d 1052, 1056 (9th Cir. 2018) ("In addition to Jackson's already deferential standard, a second level of deference applies under AEDPA.") In assessing a sufficiency of evidence challenge governed by the AEDPA standard of review, a federal habeas court must apply a "double dose of deference that can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), cert, denied, 566 U.S. 1039 (2012).
B. The Evidence Sufficiently Supported Petitioner's Extortion Convictions.
Petitioner was convicted of nine counts of extortion against named individuals (Counts 4 through 12) (see Doc. 9-2, pp. 4-5). The evidence sufficiently supported these convictions.
1. Applicable State Law
Under California law, "[e]xtortion is the obtaining of property or other consideration from another, with his or her consent, . . . induced by a wrongful use of force or fear. ..." Cal. Penal Code § 518(a). The perpetrator may cause "fear" in the victim by, inter alia, issuing a threat "to do an unlawful injury to the person or property of the individual threatened or of a third person." Cal. Penal Code § 519. "[T]o establish extortion, the wrongful use of force or fear must be the operating or controlling cause compelling the victim's consent to surrender the thing to the extortionist." Chan v. Lund, 188 Cal.App.4th 1159, 1171, 116 Cal.Rptr.3d 122 (2010), cert, denied, 564 U.S. 1019 (2011) (citation and internal quotations omitted). Extortion requires the specific intent to induce the victim to consent to part with his or her property. People v. Torres, 33 Cal.App.4th 37, 50, 39 Cal.Rptr.2d 103 (1995).
The threat need not be express and "may be implied from all of the circumstances." People v. Bollaert, 248 Cal.App.4th 699, 725, 203 Cal.Rptr.3d 814 (2016). "No precise or particular form of words is necessary in order to constitute a threat under the circumstances. Threats can be made by innuendo and the circumstances under which the threat is uttered and the relations between the defendant and the target of the threats may be taken into consideration in making a determination of the question involved." Stenehjem v. Sareen, 226 Cal.App.4th 1405, 1424, 173 Cal.Rptr.3d 173 (2014) (internal quotations, citations, and alterations omitted). "The more vague and general [the extortionist's] actions and statements the better they will serve his purpose in magnifying the fear of his victim and the better also it will serve to protect him in the event of the failure to accomplish his extortion and of a prosecution of his attempted crime." People v. Massengale, 261 Cal.App. 2d 758, 764-65, 68 Cal.Rptr. 415 (1968) (citations omitted).
2. Trial Evidence
The prosecution presented evidence that Petitioner and the rest of Tonito's crew used express and implied threats of harm to induce the victims to pay taxes.
Michael Franco, a tax collector in Tonito's crew, testified that Franco would "enforc[e] and collect[] money" on behalf of Tonito and the Mexican Mafia (R.T. 297). Franco explained how he reportedly would compel drug dealers and gang members to pay taxes to the Mexican Mafia:
Q: When you say you're taxing them, you're going to people who are selling drugs or committing other crimes in a particular neighborhood controlled by the person you're
working for?
A: Correct.
Q: And what do you do? Are you asking them, telling them to give you money? How does that work?
A: You make them an offer that they can't refuse.
Q: Okay. So what is that?
A: That offer is you are either going to do what we ask and we're going to work together, or we're going to have problems.
Q: Okay. When you say "We're going to have problems," what do you mean by that?
A: They're either going to end up paying a lot more money or they're going to be dealt with, depending on the severity of it.
Q: Okay. And when you say "dealt with," what is - what are you talking about?
A: Could be anything from might take away your car or sign over your house. You might lose your life.(R.T. 298). According to Franco, individuals had no choice but to pay taxes, because those who refused could be physically harmed or killed (R.T. 298, 311-13, 375-76). Franco reportedly knew three or four individuals who had been killed for failing to pay taxes (R.T. 31113). Franco indicated that the killings communicated to other drug dealers and gang members that they could face similar consequences if they refused to pay taxes (R.T. 311-12, 396). Franco testified that he frequently communicated with Petitioner regarding collecting taxes from gang members and drug dealers in areas controlled by Tonito and that Franco delivered tax money to Petitioner directly on one occasion (R.T. 297, 299-313, 327, 330-31).
Andy Serrano testified he also belonged to Tonito's crew and collected taxes from several street gangs on behalf of the Mexican Mafia (R.T. 1655-66). At various times, Serrano reportedly delivered taxes to Petitioner and Solorio (R.T. 1658-63). Serrano said he communicated directly with Petitioner and Solorio regarding tax collection and met with them on multiple occasions (R.T. 1658-63) . Petitioner reportedly told Serrano that, if Serrano had any difficulty collecting taxes, "to let [Petitioner] know, and that it would be taken care of" (R.T. 1667). Serrano testified that street gang members did not want to pay taxes to the Mexican Mafia, but the gang members paid out of fear because they could be physically harmed or killed if they did not pay (R.T. 1666, 1668-74, 1688-90, 1692, 1696). According to Serrano, street gang members and drug dealers could not refuse to pay taxes (R.T. 1668-69, 1688-90, 2096).
Serrano referred to the money he collected from street gangs on behalf of the Mexican Mafia as "rent" (see, e.g., R.T. 1655). According to the evidence, the terms "rent" and "taxes" both meant the money collected from street gang members for the Mexican Mafia (see, e.g., R.T. 1666, 1668, 1682-83; see also R.T. 697-98).
Ovidio Salazar testified he belonged to Tonito's crew and collected taxes from street gang members and drug dealers on behalf of the Mexican Mafia (R.T. 697, 803-06). Salazar said he delivered the taxes to Petitioner, Solorio and another Mexican Mafia associate at various times between 2006 and 2010 (R.T. 701-03, 708-10, 714, 80306). Salazar also reportedly witnessed other tax collectors delivering taxes to Petitioner (R.T. 702-04). Salazar testified he told the individuals from whom he collected taxes that they "had to pay" (R.T. 709). Salazar said that, if someone refused to pay taxes, he or she could be beaten, shot or killed (R.T. 709). Salazar reportedly "made it clear" to people who did not want to pay taxes that their refusal could result in harm to their friends or family members (R.T. 945). Salazar also "forcibly ma[de] people pay" taxes in the past (R.T. 1113). Salazar testified that, on one occasion, Petitioner and Salazar discussed Salazar obtaining tax money from an individual after Salazar had threatened to harm the individual's cousin who was in custody (Augmented Clerk's Transcript ("A.C.T.") 1178-80; R.T. 943-46). When Salazar assertedly relayed the substance of the threat to Petitioner, Petitioner allegedly responded, "Next time [they] say something to you, tax their ass, dude. . . . Fuck 'em." According to Salazar, the directive from Petitioner to "tax their ass" meant Salazar should make the person pay double (A.C.T. 1179-80; R.T. 945-46).
The prosecution's gang expert, Los Angeles County Sheriff's Department Detective Francis Hardiman, testified that the primary activity of the Mexican Mafia is extortion based on a credible threat of violence (R.T. 1951). Hardiman explained that Mexican Mafia tax collectors use express or implied threats of violence to induce drug dealers and gang members to pay taxes (R.T. 1961-64). According to Hardiman, street gang members and drug dealers know that they, their associates, or their family members may be harmed or killed if they do not comply with Mexican Mafia orders, including the order to pay taxes (R.T. 1942-43, 1963-64, 1970-73). Petitioner's own gang expert, Martin Flores, also testified that gang members and drug dealers must pay taxes to the Mexican Mafia to avoid beatings or death (R.T. 230103) .
Detective Neslen and Salazar both testified that Salazar collected taxes from the victims named in Counts 4 through 12, and that Salazar turned the taxes over to Petitioner (R.T. 762-63, 803-06, 1020-21, 1726-44, 2089-93).
3. Analysis
Construed in the light most favorable to the prosecution, the foregoing evidence amply supported Petitioner's extortion convictions. The testimony indicated that tax collectors in Tonito's crew obtained payments by directly or impliedly threatening to harm the victims, their family members, or their property if the victims refused to pay (R.T. 298, 311-13, 709, 943-46, 1961-63, 1666-69, 1688-90, 1970, 2096). There was evidence that, as to each extortion count, Salazar collected the taxes from the named victims (R.T. 803-06, 1731-44). Salazar said he told those from whom he collected taxes that they "had to pay," and Salazar "made it clear" that failure to pay could result in the victim being beaten, shot or killed (R.T. 709). Based on Salazar's testimony, as well as the testimony of Franco, Serrano and Hardiman, a rational jury could find that the victims had been induced to pay taxes because of threats. Even if Salazar did not tell the victims explicitly that they would be harmed if they failed to pay taxes, the threat of harm plainly could be "implied from all of the circumstances" and was "inherent and implied in the very structure" of Tonito's crew and the Mexican Mafia. See People v. Bollaert, 248 Cal.App.4th 699, 725, 726, 203 Cal.Rptr.3d 814 (2016); see also People v. Massengale, 261 Cal.App. 2d at 764 (inherently menacing conduct of "well organized" and "experienced" defendants can support a finding of extortion); People v. Oppenheimer, 209 Cal.App. 2d 413, 422, 26 Cal.Rptr. 18 (1962), cert, denied, 375 U.S. 975 (1964) ("No precise words are necessary to convey a threat. Conduct takes its legal color and quality more or less from the circumstances surrounding it.") (internal quotations and citations omitted).
A rational jury also could find that Petitioner was personally and extensively involved in managing these tax collection operations (see, e.g., R.T. 701-04, 708-10, 714, 803-06, 943, 1658-63, 1667, 1731-44). As to each count of conviction, evidence demonstrated that Salazar collected taxes from the victim on behalf of Tonito's crew and delivered the taxes to Petitioner (R.T. 803-06, 1018-21, 1731-44). Thus, there was sufficient evidence to establish the elements of extortion against Petitioner as to each of the counts.
Petitioner argues that the Court of Appeal erred by interpreting the alleged statements and actions by Petitioner and his associates as "threats," when the statements and actions could have been interpreted differently. For example, Petitioner argues "there were reasons other than fear that might cause a drug dealer to purchase protection from the Mexican Mafia," and Petitioner complains that "[t]he court of appeal neglects to include this evidence in its summary" (Doc. 1, p. 11). Petitioner even argues that the Court of Appeal should not have interpreted statements such as "you must pay" as involving any threat (id.).
Petitioner's arguments lack merit. As set forth above, the testimony of Salazar and other witnesses sufficiently supported a rational conclusion that the victims were induced to pay based on threats of harm (see R.T. 298, 311-13, 375-76, 709, 945, 1666, 166874, 1688-90, 1962, 1696). Even if the threats were not explicit or direct, the threats plainly could be "implied from all of the circumstances." People v. Bollaert, 248 Cal.App.4th at 725. It is immaterial whether certain trial testimony could have been interpreted differently or could have been rejected by the jury. On habeas corpus, the 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 326 ("[A] federal habeas corpus court faced with a record of historical facts 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."). Construing the trial evidence in the light most favorable to the prosecution, a rational trier of fact could have found Petitioner guilty of extortion beyond a reasonable doubt. See Jackson, 443 U.S. at 319.
For the same reasons, Petitioner has failed to show that the Court of Appeal's decision unreasonably applied Jackson or any other Supreme Court precedent in rejecting Petitioner's claim challenging the sufficiency of the evidence to support his extortion convictions. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011) .
C. The Evidence Sufficiently Supported Petitioner's Convictions for Conspiracy to Murder, and the Attempted Murders of, Arellano and Bugarin,
1. Applicable State Law
To prove criminal conspiracy under California law, the prosecution must establish: (1) an agreement between two or more persons; (2) with the specific intent to agree to commit a public offense; (3) with the further specific intent to commit that offense; and (4) an overt act committed by one or more of the parties for the purpose of accomplishing the object of the agreement or conspiracy. People v. Russo, 25 Cal.4th 1124, 1131, 108 Cal.Rptr.2d 436 (2001); People v. Backus, 23 Cal.3d 360, 390, 152 Cal.Rptr. 710 (1979). These elements can be established by circumstantial evidence. See People v. Vu, 143 Cal.App.4th 1009, 1024-25, 49 Cal.Rptr.3d 765 (2006); People v. Herrera, 70 Cal.App.4th 1456, 1464, 83 Cal.Rptr.2d 307 (1999) (disapproved on other grounds in People v. Mesa, 54 Cal.4th 191, 198-99, 142 Cal.Rptr.3d 2 (2012)); People v. Martin, 150 Cal.App.3d 148, 163, 197 Cal.Rptr. 655 (1983), cert, denied, 469 U.S. 930 (1984) .
"[A]ny one of the conspirators, and not necessarily the charged defendant, may commit the overt act to consummate the conspiracy." People v. Russo, 25 Cal.4th at 1135; see CALJIC No. 8.69." [A] n overt act is an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime." People v. Johnson, 57 Cal.4th 250, 259, 159 Cal.Rptr.3d 70 (2013) (internal quotations and citation omitted); see CALJIC No. 8.69. "Once one of the conspirators has performed an overt act in furtherance of the agreement, 'the association becomes an active force, it is the agreement, not the overt act, which is punishable. Hence the overt act need not amount to a criminal attempt and it need not be criminal in itself.'" Id.
To prove attempted murder under California law, the prosecution must establish: (1) the specific intent to kill the alleged victim; and (2) a direct but ineffectual act toward accomplishing the intended killing. See People v. Canizales, 7 Cal. 5th 591, 602, 248 Cal.Rptr.3d 370 (2019); see also Cal. Penal Code §§ 187(a), 664(a). "Because direct evidence of a defendant's intent rarely exists, intent may be inferred from the circumstances of the crime and the defendant's acts." People v. Sanchez, 63 Cal.4th 411, 457, 204 Cal.Rptr.3d 682 (2016), cert, denied, 580 U.S. 1204 (2017); see also Jackson, 443 U.S. at 325.
Petitioner was convicted of the attempted murders of Arellano and Bugarin under a direct aiding and abetting theory. A defendant who aids and abets the direct perpetrator of a crime may be convicted as a principal to the crime. See Cal. Penal Code § 31; People v. McCoy, 25 Cal.4th 1111, 1116-17, 108 Cal.Rptr. 188 (2001). An aider and abettor must act "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." People v. McCoy, 25 Cal.4th at 1118 (internal quotations and citation omitted; original emphasis). "When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person must share the specific intent of the direct perpetrator, that is to say, the person must know the full extent of the direct perpetrator's criminal purpose and must give aid or encouragement with the intent or purpose of facilitating the direct perpetrator's commission of the crime." People v. Lee, 31 Cal.4th 613, 624, 3 Cal.Rptr.3d 402 (2003), cert, denied, 541 U.S. 947 (2004) (internal quotations, alterations and citation omitted).
The jury also was instructed on a natural and probable consequence theory (S.C.T. 1378, 1380), which appears no longer to be a valid legal theory under California law. See Cal. Penal Code § 1172.6; People v. Gentile, 10 Cal. 5th 830, 847, 272 Cal.Rptr.3d 814 (2020). However, the Court of Appeal determined that the jury could not have relied on the natural and probable consequences theory to find Petitioner guilty with respect to the attempted murders. The Court of Appeal observed that the crimes were the planned objectives of agreement between and among the defendants and, therefore, Petitioner necessarily was convicted under a valid aiding and abetting theory (Doc. 9-2, pp. 54-62). To the extent that Petitioner attempts to base his argument here on the trial court's allegedly erroneous giving of an instruction on natural and probable consequences, such an argument lacks merit both because any such error was harmless and because the Court is bound by the state court's construction of state law and findings regarding what occurred in the state proceedings. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) ("We have repeatedly held 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."); 28 U.S.C. § 2254(d)(2) and (e)(1). In addition, as explained in the discussion of Claim Four infra, any error did not "so infect the entire trial that the resulting conviction violates due process." See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991).
2. Trial Evidence
Construed in the light most favorable to the prosecution, the trial evidence established:
In 2009, Daniel Bugarin was in county jail awaiting trial on attempted murder charges (R.T. 1325). At the time of Bugarin's arrest, he provided a statement to police implicating Bugarin's four codefendants (R.T. 1326). This statement was memorialized in a police report, which constituted "paperwork" or evidence that Bugarin had violated Mexican Mafia rules (R.T. 1326-27). Solorio spoke with John Martin, an inmate in county jail, to try to locate Bugarin (R.T. 1027-28; A.C.T. 783-86). Martin confirmed that Bugarin was in Martin's facility. Solorio told Martin that Bugarin was "on no good status right there" and that Solorio had paperwork on Bugarin (A.C.T. 785). Solorio stated that "they just got that work yesterday" and they would "have it done right" (R.T. 1028-29). Martin told Solorio that Martin had "good people" housed in the same pod as Bugarin and would be "willing" to handle the situation. Solorio responded, "Make sure that they have . . . scissors
and shit there too, you know, because I want it done right. . . . It's not gonna be, you know, just hands" (A.C.T. 786, 793). Solorio told Martin to call in a week because Solorio needed to show the paperwork on Bugarin to others "so they can go ahead and vouch for it too" (A.C.T. 794; see also R.T. 1706-10). Three days later, Solorio and Martin spoke again (A.C.T. 799-801). Solorio told Martin it was "a go," but to hold off and call back in a few days (A.C.T. 800-01). The discussions between Solorio and Martin regarding Bugarin indicated a plan to kill Bugarin (R.T. 1027-29).
On February 14, 2009, inmates affiliated with the Mexican Mafia attacked Bugarin (R.T. 1328-29). The attackers stabbed Bugarin in the neck and back and punched him repeatedly in the head, face and torso (R.T. 1316-21, 1325, 1328-30, 1708). Bugarin believed Solorio must have ordered the attack because Bugarin had violated Mexican Mafia rules by cooperating with authorities, and Solorio was in charge of the territory where Bugarin operated (R.T. 1332-42, 170809) .
In 2010, Salazar discovered that James Arellano was collecting taxes from individuals in territory controlled by Tonito, and Arellano was keeping the money for himself rather than turning it over to Salazar (R.T. 1030-31). Salazar informed Solorio of the problems with Arellano (R.T. 1031). Salazar learned that Arellano was in the Los Angeles County Men's Central jail (R.T. 1032-33). At times, the
Mexican Mafia could more easily attack people in custody because the Mexican Mafia controls the Los Angeles County jail facilities and various state prison yards (R.T. 194048, 1955-72, 1032). Salazar told Solorio that Arellano was housed with one of Salazar's "homeboys," Hector Ornelas, and "that it was easy for us to get to him there" (R.T. 1033). In April 2010, Solorio sent a text message to Ornelas' girlfriend, which read: "James Hernandez Arellano also known as Lil Danger, 4M Marijuano Locos 13. Hard Candy" (R.T. 1030, 1712-16; A.C.T. 24). Salazar testified that the term "hard candy" constituted an order to kill (R.T. 1031, 1713, 1972). After the text was sent from Solorio to Ornelas' girlfriend, various inmates affiliated with the Mexican Mafia carried out five separate attacks on Arellano, during which Arellano was stabbed, punched and kicked repeatedly. (A.C.T. 1308-21, 1378-79, 1387-90; R.T. 1627, 1634-41). Arellano told Detective Neslen that Arellano believed the order to attack had come from Solorio (A.C.T. 1378, 1382). One of the inmates who attacked Arellano told a deputy sheriff that the inmate did not want to attack Arellano, but the inmate had been ordered to do so (R.T. 1646-48).
Petitioner was Tonito's brother, a camarada, and the chief of Tonito's crew (R.T. 327, 470, 713, 1775-77, 1788-90, 1791; A.C.T. 9). In this role, Petitioner could have individuals killed for violating Mexican Mafia rules (R.T. 825-26, 858-59, 2014; A.C.T. 1016-17). Solorio was Tonito's
facilitator, Petitioner's assistant, and a camarada (R.T. 458, 549-51, 713, 1769-72, 1788-89, 2002). Petitioner and Solorio worked together, and with Tonito, in operating the crew (see, e.g., R.T. 1730-31, 1747-48, 1758-62, 1769-72, 1786-90, 1794-1806). Petitioner and Solorio would review "paperwork" establishing that individuals had violated Mexican Mafia rules in order to obtain "green lights" or authorizations from Tonito to have these individuals disciplined (R.T. 554-57, 1406, 1418-21, 1430-34, 1445, 1707-10, 1716-19, 1760-62, 1774-75, 1791-92; A.C.T. 586611). Petitioner and Solorio also would authorize attacks on individuals who violated Mexican Mafia rules (R.T. 57376, 580-82, 594-99, 856-59, 878-80, 883-84, 932-33, 962-65, 1717, 1760-62, 1768-69; S.C.T. 540-46; A.C.T. 998-99, 100313, 1047-49, 1166-70). In the event that an individual was suspected of breaking the rules, the individual would be disciplined to varying degrees, up to and including death (see R.T. 720-21, 1056, 1666, 1668-74, 1688-90) . In order to have an individual killed for a violation of Mexican Mafia rules, prior approval from the crew chief (i.e., Petitioner) was required, and the rule violation must be established through "paperwork" or other proof (R.T. 346-47, 356-59, 391-99, 554, 1945, 1973-76).
3. Analysis
The relevant trial evidence, detailed above, sufficiently supported Petitioner's attempted murder convictions. Salazar testified that Arellano and Bugarin were to be killed for violating Mexican Mafia rules and that Solorio directly arranged the attacks (R.T. 1028-29, 1030-33). The jury heard numerous recorded conversations, testimony from members of Tonito's crew, and testimony from law enforcement officers with knowledge of Mexican Mafia operations indicating that Petitioner and Solorio were camaradas who worked closely together, and with Tonito, to operate the crew. The testimony rationally supported the conclusion that the order to kill Arellano and Bugarin could not have been issued without Petitioner's knowledge and approval, in light of Petitioner's position as crew chief and camarada and Petitioner's close working relationships with Solorio and Tonito. Accordingly, there was sufficient evidence that Petitioner facilitated the attacks, aided and encouraged the perpetrators of the attacks, and demonstrated knowledge and intent to kill Bugarin and Arellano. See People v. Guillen, 227 Cal.App.4th 934, 997, 174 Cal.Rptr.3d 703 (2014) (finding sufficient evidence to support murder conviction under aiding and abetting theory because defendant was "shot caller" who authorized fatal beating of jail inmate); see also People v. Nguyen, 61 Cal.4th 1015, 1054, 191 Cal.Rptr.3d 182 (2015), cert, denied, 578 U.S. 947 (2016) (finding that companionship with the perpetrator of the crime is one of the factors that may be considered in determining whether a defendant aided and abetted a crime).
The evidence also sufficiently supported Petitioner's related convictions for conspiracy to murder Bugarin and Arellano. Again, the prosecutor presented ample evidence, including numerous recorded conversations and testimony from several witnesses, that Petitioner and Solorio worked together, and with Tonito, to run the organization. Petitioner and Solorio coordinated with and informed each other regularly regarding crew operations, including the status of tax collections in each area under Tonito's control, the organization's relationships and status with other crews, and any ongoing issues with crew members. Testimony regarding the rules and organization of the Mexican Mafia generally, and Tonito's crew specifically, indicated that the decisions to kill Bugarin and Arellano could not have been made or executed without the agreement and involvement of Petitioner and Solorio. It cannot reasonably be disputed that overt acts were committed in furtherance of the conspiracy, as the orders to kill were issued by Solorio to those in a position to reach Arellano and Bugarin in custody and Arellano and Bugarin were attacked after issuance of the orders. See People v. Russo, 25 Cal.4th at 1135 (any conspirator may commit overt act to consummate the conspiracy). The existence of the conspiracy was further evidenced by the circumstances under which the attacks took place - in a coordinated fashion by Mexican Mafia affiliates, after paperwork had been obtained and verified as required by Mexican Mafia rules. See People v. Vu, 143 Cal.App.4th at 102425 (conspiracy can be proven by circumstantial evidence).
It was not necessary to establish a clear, express agreement between Petitioner and Solorio to kill Arellano and Bugarin. The various conversations regarding the victims' violation of Mexican Mafia rules and the decision to put a "green light" on the victims, along with the evidence regarding Petitioner's and Solorio's relative positions of authority, sufficiently established the conspiracies to commit murder. See People v. Vu, 143 Cal.App.4th at 1025 ("To prove an agreement, it is not necessary to establish the parties met and expressly agreed; rather, 'a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design.'").
Therefore, Claim Three fails on the merits. Petitioner is not entitled to federal habeas relief on Claim Three.
III. Petitioner Is Not Entitled to Federal Habeas Relief On Claim Four,
In Claim Four, Petitioner contends that the trial court improperly instructed the jury on conspiracy. Petitioner argues that the court's instructions allowed the jury to convict Petitioner of conspiracy to commit murder without finding Petitioner had the requisite specific intent to kill (Doc. 1, pp. 14-16). As discussed below, Claim Four fails under de novo review.
A. Governing Legal Standards
Jury instructional error warrants federal habeas relief only if the "instruction by itself so infected the entire trial that the resulting conviction violates due process." Waddington v. Sarausad, 555 U.S. 179, 191 (2009) (internal quotation marks and citation omitted). The challenged instruction must be more than merely erroneous; rather, a petitioner must show there was a "reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam) (internal quotation mark omitted); accord Waddington v. Sarausad, 555 U.S. at 190-91; see also Cupp v. Naughten, 414 U.S. 141, 146 (1973) ("Before a federal court may overturn a conviction resulting from a state trial in which [an allegedly faulty] instruction was used, it 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.") . Whether a constitutional violation occurred must be evaluated in the context of the instructions as a whole and the entire trial record. Estelle v. McGuire, 502 U.S. 62, 72 (1991).
Further, petitioners "are not entitled to habeas relief based on trial error unless they can establish that it resulted in 'actual prejudice.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted). "Actual prejudice" exists only where the error had a "substantial and injurious effect or influence in determining the jury's verdict." Id.; see also Davis v. Ayala, 576 U.S. 257, 268 (2015) ("There must be more than a 'reasonable possibility' that the error was harmful.") .
B. Background
Petitioner, Solorio and McMorries were charged with murdering Knight (Count 1) and conspiracy to murder Knight (Count 2) (Doc. 9-2, p. 4) . Petitioner and Solorio were charged with the attempted murders of Arellano (Count 16) and Bugarin (Count 18) and conspiracy to murder Arellano (Count 17) and Bugarin (Count 19) (Doc. 9-2, p. 5). Petitioner, Solorio and McMorries also were charged with conspiracy to commit extortion (Count 3) (id.).
The trial court instructed the jury on the elements of first and second degree murder (S.C.T. 1374-84). The trial court then gave several instructions regarding the conspiracy charges, including: identifying the specific conspiracies charged and overt acts alleged (S.C.T. 1385-90, 1393-96; CALJIC No. 6.23); the elements of conspiracy to commit murder (S.C.T. 1391-92, CALJIC 8.69); and the definitions of conspiracy and overt acts (S.C.T. 1397; CALJIC No. 6.10).
As to the conspiracies to commit murder, the jury was instructed with CALJIC No. 8.69:
Defendants Solorio, McMorries and Lopez are accused in Count 2 of having committed the crime of conspiracy to commit murder. . . . Defendants Solorio and Lopez are also accused in Counts 17 & 19 of having committed the crime of conspiracy to commit murder. . . .
Every person who conspires with any other person or persons to commit the crime of murder is guilty of a violation of Penal Code section 182, subdivision (a)(1), a crime.
Murder is the unlawful killing of a human being with malice aforethought.
A conspiracy to commit murder is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that murder, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime.
The crime of conspiracy to commit murder requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being.
In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the acts alleged in the Information to be an overt act and that the act found to have been committed was an overt act. It is not necessary to the guilt of any particular defendant that defendant personally committed an overt act, if he was one of the conspirators when the overt act was committed.
The term "overt act" means any step taken or act committed by one [or more] of the conspirators which goes beyond mere planning or agreement to commit a crime and which step or act is done in furtherance of the accomplishment of the object of the conspiracy.
To be an "overt act," the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that the step or act, in and of itself, be a criminal or an unlawful act.
In order to prove this crime, each of the following elements must be proved:
1. Two or more persons entered into an agreement to kill unlawfully another human being;
2. Each of the persons specifically intended to enter into an agreement with one or more other persons for that purpose;
3. Each of the persons to the agreement harbored express malice aforethought, namely a specific intent to kill unlawfully another human being; and
4. An overt act was committed in this state by one or more of the persons who agreed and intended to commit murder.(S.C.T. 1391-92 (emphasis added)).
The trial court further instructed the jury that, in order to find Petitioner guilty of conspiracy to commit murder, "you must unanimously agree and find beyond a reasonable doubt that (1) there was a conspiracy to commit the crime of murder, and (2) a defendant willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy" (S.C.T. 1407; CALJIC No. 6.22 (Conspiracy -Case Must Be Considered as to Each Defendant)). The jury received a similar instruction specifically pertaining to the extortion conspiracy (S.C.T. 1408; CALJIC No. 6.22).
The trial court also instructed the jury pursuant to CALJIC No. 6.11, as follows:
Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if that act or declaration is in furtherance of the object of the conspiracy.
The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators.
A member of the conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime or act of a co-conspirator to further the object of the conspiracy, even though that crime or act was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of that crime or act.
You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and, if so, whether the crime alleged in Counts 1, 16 and 18 were perpetrated by a co-conspirator in furtherance of that conspiracy and was a natural and probable consequence of the agreed upon criminal objective of that conspiracy.
In determining whether a consequence is "natural and probable" you must apply an objective test based not on what the defendant actually intended but on what a person of reasonable and ordinary prudence would have expected would be likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A "natural consequence" is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. "Probable" means likely to happen.(S.C.T. 1398-99; CALJIC No. 6.11).
Petitioner was convicted on all three counts of conspiracy to commit murder and the single count of conspiracy to commit extortion (C.T. 1422-24, 1436, 1438).
C. Analysis
According to Petitioner, his due process rights were violated because the trial court assertedly should not have instructed the jury with CALJIC No. 6.11. Petitioner argues that CALJIC No. 6.11 allowed the jury to convict Petitioner of conspiracy to commit murder "as a natural and probable consequence of conspiring to commit extortion" without finding that Petitioner had the requisite specific intent to kill (Doc. 1, pp. 14-16; Doc. 31, p. 22; see also Doc. 27-44, pp. 9223). Petitioner argues that" [i]t is possible, if not likely, that the jury relied on Petitioner's participation in an extortion conspiracy as a basis to convict him of Knight's murder" (Doc. 31, p. 22). Petitioner's arguments lack merit.
The jury received clear and explicit instructions that, in order to find a defendant guilty of conspiracy to commit murder, the jury must find that the defendant had "the specific intent to kill unlawfully another human being" (S.C.T. 1391). The jury received separate instructions regarding the elements of conspiracy to commit extortion (S.C.T. 1397-98). The jury also received instructions regarding how to consider the evidence regarding the formation and existence of a conspiracy and when conspirators could and could not be bound by the acts of others (S.C.T. 1398-1406). The instruction that gives rise to Plaintiff's claim, CALJIC No. 6.11, was included only in this latter group of instructions (S.C.T. 1398-99). In context, the giving of CALJIC 6.11 did not impact the specific intent element on which the trial court had previously instructed. To the contrary, CALJIC No. 6.11 itself required the jury to determine whether Petitioner was "guilty as a member of a conspiracy to commit the originally agreed upon crime" (S.C.T. 1398). In addition, CALJIC No. 8.69 required the jury to find that" [e] ach of the persons to the agreement [to commit murder] harbored express malice aforethought, namely a specific intent to kill unlawfully another human being" (S.C.T. 1392). Thus, the trial court's instructions necessarily required the jury to find Petitioner's intent to kill in order to find Petitioner guilty of conspiracy to commit murder. The jury is presumed to have followed the instructions given. Weeks v. Angelone, 528 U.S. 225, 234 (2000).
Notably, the jury found Petitioner guilty of the first degree murder of Knight (R.T. 2716). To the extent the prosecutor had argued an alternative "natural and probable consequences" theory, the prosecutor had stated that murder under such a theory would be murder in the second degree (R.T. 2298, 2505). It is thus evident that, contrary to Petitioner's argument, the jury did not rely on a "natural and probable consequences" theory in finding Petitioner guilty of the murder of Knight.
The jury also was instructed to consider each defendant individually and to determine whether that defendant was part of each of the four separately alleged conspiracies (S.C.T. 1407-08). The jurors received further instructions that they could find one overall conspiracy or separate conspiracies (S.C.T. 1409-10). The jury specifically found the existence of four separate and distinct conspiracies (C.T. 1439). Thus, the instructions required the jury to determine whether Petitioner was guilty of conspiracy to commit murder in Counts 2, 17 and 19, as well as whether he was guilty of a separate conspiracy to commit extortion in Count 3.
In the context of the trial record and the instructions as a whole, Petitioner has failed to show any reasonable likelihood that the jury convicted Petitioner of conspiracy to commit murder without finding he had the specific intent to kill. As the Court of Appeal found, "the facts establish that the crimes committed were not the inadvertent forseeable outcome of appellants' behavior. Rather, they were the planned objectives of the conspiracy. ..." (Doc. 9-2, p. 61) . Thus, there was no instructional error that "so infected the entire trial that the resulting conviction violates due process," Estelle v. McGuire, 502 U.S. 62, 72 (1991), and no instructional error that had a "substantial and injurious effect or influence" on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
See also footnote 11, supra.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
Petitioner's request for an evidentiary hearing (see Doc. 31, pp. 72-75) is denied. Federal habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present for the first time in federal court. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011) ("Pinholster"); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert, denied, 573 U.S. 919 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as section 2254(d)(1) claims). In any event, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the 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.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.