Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Michael W. Fitzgerald, 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
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on June 2, 2014. The Petition challenges four of Petitioner's seven convictions arising from an attempted robbery of a jewelry repair store. Respondent filed an Answer on July 28, 2014. Despite receiving an extension of time, Petitioner did not file a Reply within the allotted time.
BACKGROUND
An Amended Information charged Petitioner and his co-defendant Jesus Farfan with: (a) the attempted robberies of Juan Exeni and Miguel Jimenez (Counts 1 and 2); (b) the robbery of Enrique Villamil (Count 3); (c) assault with a deadly weapon (metal rings or a metal bar) on Exeni (Count 4); (d) assault with a semiautomatic firearm on Jimenez and Villamil (Counts 5 and 6); and (e) assault with a deadly weapon (a metal chain) on Exeni (Count 7) (Clerk's Transcript ["C.T."] 92-97). The Amended Information also alleged, inter alia, that a principal was armed with a handgun in the commission of the offenses alleged in Counts 1, 2, 3, 4 and 7 (C.T. 96).
Although the Amended Information initially alleged an assault with a "metal chair" in Count 7, at trial the prosecution amended Count 7 to allege an assault with a "metal chain" (R.T. 449-50).
A jury found Petitioner guilty of the offenses alleged in Counts 1, 2, 3, 5, 6 and 7, and found true the allegation that a principal was armed with a handgun in the commission of the offenses alleged in Counts 1, 2, 3 and 7 (Reporter's Transcript ["R.T."] 906-09; C.T. 166-68, 170-75). The jury acquitted Petitioner of the assault alleged in Count 4 (R.T. 907; C.T. 169, 174). Petitioner received a sentence of twelve years and eight months (R.T. 1203-05; C.T. 197-201).
The jury also found Farfan guilty of the offenses alleged in Counts 1, 2, 3, 5, 6 and 7, and found true various firearm enhancements (R.T. 902-06).
The Court of Appeal affirmed the judgment (Respondent's Lodgment 6; see People v. Martinez, 2012 WL 6636172 (Cal.App. Dec. 21, 2012)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgments 7, 8).
SUMMARY OF TRIAL EVIDENCE
The prosecution's evidence showed the following:
On March 24, 2011, Juan Exeni was working in his jewelry repair store on the third floor of a building in downtown Los Angeles (R.T. 323, 326). Also in the store were Exeni's employee, Enrique Villamil, and a friend, Miguel Jimenez (R.T. 326-27, 362, 403-04, 422). Petitioner, Farfan and an unidentified third man entered the store (R.T. 404). The third man asked for "Juan, " then ran forward and began to hit Exeni (R.T. 327-28). This third man pushed Exeni face down onto the floor and sat on Exeni's back (R.T. 328-29). When the third man stopped hitting Exeni for a moment, Exeni raised his head and saw Farfan with a 9 millimeter gun and Petitioner holding a metal tool used for sizing bracelets (R.T. 329-31). Farfan put the gun to Jimenez' head and then hit Jimenez with the gun (R.T. 329-30, 333, 405-06, 425). Farfan instructed Villamil to kneel down, and then Farfan hit Villamil on the head with the gun (R.T. 407, 426). Farfan took Villamil's personal jewelry, a chain and some rings (R.T. 427-28, 436).
The third man, who was sitting on Exeni's back, pulled out a metal dog chain and started choking Exeni with the chain (R.T. 335-36, 408, 430). Exeni pulled at the chain and was able to get the chain off of his neck (R.T. 336-37). Exeni then rose up halfway and knocked the third man backwards (R.T. 337). Petitioner came over and hit Exeni, causing Exeni to see "stars" and fall to the ground (R.T. 338-40, 409). Petitioner tried to tie Exeni's feet together, but Exeni began kicking (R.T. 340-42). Petitioner and Farfan told Exeni to open the safe (R.T. 342, 413). When Exeni and Villamil refused to open the safe, Petitioner handed Farfan the magazine for the gun and told Farfan to "shoot" (R.T. 410, 418, 429-30). Exeni said he would give the men everything they wanted (R.T. 341). However, when Exeni stood up, he hit the third man (R.T. 342-43). Villamil began struggling with Farfan over the gun (R.T. 343-45, 381, 411, 431). The gun went off, but no one was hit (R.T. 345, 411). The three perpetrators took off running (R.T. 346, 412). Villamil gave Farfan's gun to Exeni, and Exeni pursued Farfan (R.T. 346-47). Jimenez and Villamil, who was armed with a folding chair, joined the chase (R.T. 348, 431). Exeni fired a shot into a wall (R.T. 347-48). The three victims caught up with the three perpetrators in the area of the elevators, where a fight ensued both outside and inside an elevator (R.T. 347-50). Villamil struck the perpetrators with the folding chair (R.T. 349-50).
The third man ran out of the elevator and got away (R.T. 350-51). When Petitioner also ran out of the elevator, Exeni chased Petitioner and hit Petitioner with the gun (R.T. 350-51). Petitioner and Farfan thereafter remained in the building until security personnel and police arrived (R.T. 351, 413). Surveillance video showed Exeni and his companions chasing Petitioner, Farfan and the third man, and also showed the fight in the elevator (R.T. 363-65).
Petitioner previously had visited the store in October or November of 2010 to have some items repaired (R.T. 377-78). The day before the attempted robbery, Exeni saw Petitioner in the hallway of the building (R.T. 378-79). At that time, Petitioner told Exeni that Petitioner had come to look for a ring (R.T. 379).
Petitioner and Farfan did not present any defense evidence (R.T. 447).
PETITIONER'S CONTENTIONS
Petitioner contends that the evidence did not sufficiently support his convictions for the three counts of assault or the one count of robbery.
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, 132 S.Ct. 38, 44 (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, 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id., 131 S.Ct. at 786 (citation and internal quotations 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., 131 S.Ct. at 786-87 ("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.").
In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
STANDARDS GOVERNING CHALLENGES TO THE SUFFICIENCY OF THE EVIDENCE
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 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). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
Jackson v. Virginia 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 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 trier 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, 132 S.Ct. at 2064 ("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, 132 S.Ct. 2, 4 (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 [v. Virginia]." 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).
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). The Court has conducted such an independent review with respect to Petitioner's sufficiency claim.
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, a 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, 132 S.Ct. at 2064.
DISCUSSION
Petitioner contends the evidence was insufficient to support his convictions for: (1) the second degree robbery of Villamil; (2) the assault with a semiautomatic firearm on Jimenez; (3) the assault with a semiautomatic firearm on Villamil; and (4) the assault with a metal chain on Exeni. Petitioner claims that there was no evidence that Petitioner planned, was aware of, or could have foreseen that the third man would attack Exeni or that Farfan would pistol whip Villamil and take Villamil's personal jewelry (Petition, "Exhibit A, " p. 6). The California Court of Appeal rejected these claims, reasoning that: (1) the evidence that Petitioner carried a magazine for Farfan's gun suggested Petitioner knew Farfan had a gun; (2) the evidence that Petitioner handed Farfan the magazine and told Farfan to "shoot" suggested that Petitioner was aware of, and supported, the use of violence against the victims; (3) the evidence that the three perpetrators entered and left the store together suggested that they planned and were engaged jointly in the robbery; and (4) the evidence that the store was a jewelry store with building security suggested that the perpetrators knew or should have known that violence would be "likely more necessary for their own success than with another type of store" (Respondent's Lodgment 6, pp. 5-6; see People v. Martinez, 2012 WL 6636172, at *3).
Petitioner does not challenge his convictions for attempted robbery and does not challenge the firearm enhancement. Indeed, Petitioner's counsel told the jury in closing argument to find Petitioner guilty of the attempted robberies and also to find the enhancements to be true (R.T. 635).
Under California law, "a person who aids and abets the commission of a crime is a principal' in the crime, and thus shares the guilt of the actual perpetrator." People v. Prettyman, 14 Cal.4th 248, 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013 (1996). An aider and abettor "is a person who, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.'" Id. at 259. Factors that are probative on the issue of knowledge and intent include "presence at the scene of the crime, [and] companionship and conduct before and after the offense, including flight." People v. Mitchell, 183 Cal.App.3d 325, 330, 228 Cal.Rptr. 286 (1986); People v. Chagolla, 144 Cal.App.3d 422, 429, 193 Cal.Rptr. 711 (1983).
Under the "natural and probable consequences" theory of aiding and abetting, an aider and abettor is guilty not only of the intended crime, but also of any other offense that was the natural and probable consequence of the intended crime. People v. Prettyman, 14 Cal.4th at 261. Under this theory of aiding and abetting, "the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime." Id. at 262. In determining whether charged crimes were the natural and probable consequence of target crimes, the issue is not whether the aider and abettor "actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." People v. Medina, 46 Cal.4th 913, 920, 95 Cal.Rptr.3d 202, 209 P.3d 105 (2009) (citations and internal quotations omitted; original emphasis); see People v. Olguin, 31 Cal.App.4th 1355, 1379-80, 37 Cal.Rptr.2d 596 (1994) (as long as the evidence shows an intent to aid and abet the target crime, "it matters not that the crime actually committed was not intended by the aider and abettor, so long as it was a reasonably foreseeable consequence of the underlying criminal conduct"). "A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case... and is a factual issue to be decided by the jury." People v. Medina, 46 Cal.4th at 920 (citations omitted).
I. Robbery of Villamil
The evidence showed Petitioner and his companions planned to commit robbery at a store Petitioner previously had visited and at which Petitioner knew he could find jewelry. Petitioner and his companions cooperated while entering the store and while attempting to subdue the occupants of the store. Petitioner carried a magazine for Farfan's gun (R.T. 410). Petitioner was standing approximately five feet away when Farfan instructed Villamil to kneel, when Farfan hit Villamil on the head with the gun, and when Farfan took Villamil's personal jewelry (R.T. 407, 426-29, 436). Petitioner did not then evince any surprise at these events, and did not disavow any intention of robbing Villamil of his jewelry. Instead, after Farfan took Villamil's jewelry, and after Exeni and Villamil refused to cooperate, Petitioner handed Farfan a magazine for the gun and told Farfan to "shoot" (R.T. 410, 418, 429-30). Following the altercations in the store, Petitioner and his companions attempted to flee together to the elevators (R.T. 346, 412). From this evidence, a rational juror could conclude beyond a reasonable doubt that Petitioner knew of Farfan's intent to commit robbery, intended to encourage or facilitate that crime, and aided the commission of that crime. See People v. Prettyman, 14 Cal.4th at 262; see People v. Brito, 232 Cal.App.3d 316, 326, 283 Cal.Rptr. 441 (1991) (scope of robbery is not limited "only to the specific items on which the defendant has focused at the time he initially applies the force").
Furthermore, a rational juror also could have found Petitioner guilty of the robbery of Villamil on a natural and probable consequences theory of aiding and abetting. Based on the evidence summarized above, a rational juror could have found that Petitioner reasonably should have expected that his companions might take jewelry from the person of one of the occupants of the store in lieu of or in addition to jewelry or other valuables from the safe.
The court instructed the jury on both the direct theory of aiding and abetting and the natural and probable consequences theory (see R.T. 672-74; C.T. 134-35). The court also instructed the jury concerning the specific elements necessary to find Petitioner guilty of the assaults on Villamil and Jimenez on a natural and probable consequences theory (see R.T. 673; C.T. 135). However, these pinpoint instructions did not preclude the jury's use of the natural and probable consequences theory to find Petitioner guilty of the robbery of Villamil.
II. Assaults with a Semiautomatic Firearm on Jimenez and Villamil
A rational juror also could have found beyond a reasonable doubt that Petitioner aided and abetted the assaults on Jimenez and Villamil because those assaults were the natural and probable consequences of the robbery and the attempted robberies. Petitioner evidently knew Farfan had a gun, as Petitioner carried the magazine for that gun. Petitioner evidently expected, and reasonably should have expected, that the victims might resist and that, consequently, the use of the gun might be necessary to achieve the perpetrators' objectives. As the Court of Appeal reasonably held, the assaults with a firearm were reasonably foreseeable consequences of an armed robbery and attempted robbery at a store containing jewelry. See People v. Fagalilo, 123 Cal.App.3d 524, 532, 176 Cal.Rptr. 698 (1981) (jury reasonably could conclude that assault was a natural and probable consequence of robbery); see generally People v. Miranda, 192 Cal.App.4th 398, 408, 121 Cal.Rptr.3d 231 (2011) ("Crimes involving gun use have frequently been found to be a natural and probable consequence of robbery") (citations omitted).
III. Conclusion
For the foregoing reasons, the California Court of Appeal's rejection of Petitioner's challenges to the sufficiency of the evidence was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. at 786-87; 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.