Opinion
2:20-cv-04945-SPG-JPR
12-21-2022
WILLIAM DEAUNTAE SHEHEE, Petitioner, v. HEATHER SHIRLEY, Acting Warden, Respondent.
ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
HOR SHERILYN PEACE GARNETT, UNITED STATES DISTRICT JUDGE.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition in this case (ECF No. 1), and all relevant pleadings and other documents filed and lodged in this action, including the Report and Recommendation of United States Magistrate Judge (ECF No. 23 (“Report”)), and Petitioner's Objection to the Report (ECF No. 24 (“Objection”)). Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the Court has conducted a de novo review of the matters to which objections have been stated. Petitioner's assertions and arguments have been reviewed carefully. The Court, however, concludes that nothing set forth in the Objection or otherwise in the record for this case affects or alters, or calls into question, the findings and analysis set forth in the Report or warrants staying this action.
Petitioner's Objection raises three grounds: (1) Petitioner's gang-related enhancement under Penal Code section 176.22(b)(1) cannot stand because the criminal trial of Daniel Smith, the fellow gang member with whom Petitioner was found to have committed the crimes in concert, resulted in a hung jury; (2) there was insufficient evidence to prove that Petitioner attacked Ms. Mena-Loria; and (3) the Magistrate Judge erred in holding that Senate Bill 81 cannot be applied retroactively. (Objection at 1-5).
First, the Court notes that the only grounds raised in the Petition with respect to Petitioner's gang-related enhancement was insufficiency of evidence. (Petition at 5). Petitioner has not previously argued that Smith's hung jury somehow undercuts his gang enhancement. Even if the Court theoretically has discretion to consider a habeas claim raised for the first time in objections to a Report & Recommendation, see Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012) (court must exercise discretion in refusing to consider new arguments raised in objections to magistrate judge's report and recommendation), any claim challenging Petitioner's gang enhancement based on Smith's hung jury has not been exhausted in state court and therefore is not appropriate for review. See, e.g., Marquez-Ortiz v. Sullivan, No. SACV 08-552-ABC (FFM), 2012 WL 294741, at *1 (C.D. Cal. Feb. 1, 2012); Greenwood v. Macomber, No. CV 16-2078-DMG (GJS), 2018 WL 2446609, at *1 (C.D. Cal. May 29, 2018). Nevertheless, as laid out in the Report, a gang enhancement under Penal Code section 186.22(b)(1) requires proof that the defendant (1) “committed a felony ‘for the benefit of, at the direction of, or in association with any criminal street gang'” and (2) acted “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) (per curiam) (quoting § 186.22(b)(1)). The statute does not require “specific intent to promote, further, or assist a gang”; it “requires only the specific intent to promote, further, or assist criminal conduct by gang members.” People v. Albillar, 51 Cal.4th 47, 66-67 (2010) (citation and emphasis omitted). Thus, if substantial evidence shows that “the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” Id. at 68. Absent from the statute is a requirement that the fellow gang member be similarly convicted for the underlying offense. Accordingly, Petitioner's argument is without merit.
Second, Petitioner's objection as to the sufficiency of the evidence that he attacked the victim simply restates the merits of his claims. As described in the Report, the court of appeal reasonably concluded that sufficient evidence supported the gang enhancement. See (Report at 34-40).
Third, the Report is correct that Senate Bill 81 does not apply retroactively for the reasons stated therein. See (Report at 10-11 (citing People v. Sek, 74 Cal.App. 5th 657, 674 (2022) (recognizing that Senate Bill 81 “shall apply to sentencings occurring after the effective date of” the bill)). Moreover, as found in the Report, Petitioner's request to amend the Petition would be futile because his claim regarding Senate Bill 81 exclusively concerns state law. (Report at 9 (citing Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (claim premised solely on misapplication of California sentencing law was not cognizable on federal habeas review)).
Having completed its review, the Court accepts the findings and recommendations set forth in the Report.
ACCORDINGLY, IT IS ORDERED THAT:
1. Petitioner's motion for leave to amend is denied.
2. The Petition is denied.
3. Judgment be entered consistent with this order.
4. The clerk serve this Order and the Judgment on all counsel or parties of record.
IT IS SO ORDERED.