Opinion
CV 20-6584-MCS(E)
08-18-2021
TINA LASHAWN BROWN, Petitioner, v. MICHAEL PALLARES, Warden A, 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 Mark C. Scarsi, 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 July 20, 2020. The Petition challenges the sufficiency of the evidence to support Petitioner's conviction for assault with a semiautomatic firearm and the sufficiency of the 1 evidence to support a related enhancement for personal infliction of great bodily injury.
Respondent filed an Answer on October 14, 2020. Despite receiving multiple, lengthy extensions of time, Petitioner failed to file a timely Reply. Subsequently, on June 30, 2021, Petitioner belatedly filed “Petitioner's Traverse in Response to Answer, etc.” (“Traverse”) and a “Motions [sic] to Reopen Time to File Reply, etc.” The Court hereby grants Petitioner's motion to extend her time once again, and the Court has considered her Traverse.
BACKGROUND
An Information charged Petitioner with: (1) assault with a semiautomatic firearm on Darrell Adams in violation of California Penal Code section 245(b) (Count 1); attempted wilful, deliberate and premeditated murder of Adams in violation of California Penal Code sections 187(a) and 664 (Count 2); and (3) possession of a firearm by a felon in violation of California Penal Code section 29800(a)(1) (Count 3) (Clerk's Transcript [“C.T.”], ECF Dkt. No. 12-1, pp. 47-51). The Information further alleged that, with respect to Counts 1 and 2, Petitioner: (1) personally used a firearm within the meaning of California Penal Code sections 12022.5 and 12022.53(b); (2) personally and intentionally discharged a firearm within the meaning of California Penal Code sections 12022.53(c) and 12022.53(d); and 2 personally inflicted great bodily injury on Adams within the meaning of California Penal Code section 12022.7(a) (C.T. 48-49). The Information also alleged that Petitioner had suffered a prior conviction qualifying as a serious felony under California Penal Code section 667(a) and also qualifying as a “strike” under California's Three Strikes Law, California Penal Code sections 667(b)- (i) and 1170.12(a) - (d) (C.T. 50).
Because the ECF page headers obscure some of the original pagination in the lodged documents, the Court references the ECF pagination.
The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code §§ 667(b) - (i) (eff. Mar. 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero), 13 Cal.4th 497, 504-05, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996). The Information charged Petitioner under both versions (C.T. 50).
Petitioner waived her right to a jury trial (Reporter's Transcript, ECF Dkt. No. 12-4 [“R.T.”], p. 17; C.T. 126). At a bench trial, the court acquitted Petitioner on Count 2, but found Petitioner guilty on Counts 1 and 3, and found true the enhancement allegations regarding personal use of a firearm and personal infliction of great bodily injury (R.T. 172-74, 180-81). The court found not true the allegation of a prior serious felony strike conviction (R.T. 175-76).
It is unclear from the record what became of the separate enhancement allegation of personally and intentionally discharging a firearm within the meaning of California Penal Code sections 12022.53(c) and 12022.53(d).
The court sentenced Petitioner to a nine-year prison term on Count 1 plus two consecutive three-year terms as enhancements for the personal use of a firearm and the personal infliction of great bodily 3 injury (R.T. 212-13). The court imposed and stayed a two-year term on Count 3. Thus, Petitioner received a total sentence of fifteen years (R.T. 212-13).
The California Court of Appeal affirmed (Respondent's Lodgment 6, ECF Dkt. No. 12-8; see People v. Brown, 2019 WL 3562037 (Cal.App. Aug. 6, 2019)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 8, ECF Dkt. No. 12-10).
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. Brown, 2019 WL 3562037 (Cal.App. Aug. 6, 2019). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).
On April 22, 2017, Brown arrived late for a car detailing appointment she had with Darrell Adams (Adams) at a coin-operated carwash. Adams washed Brown's car free of charge, as he had agreed on the previous day. When Adams began to leave for another appointment, Brown asked if he would vacuum her car. Adams refused, and continued to walk across the street to his parked bicycle.4
Brown drove her car to where Adams was unlocking his bicycle. Brown got out of her car and drew a .25-caliber semiautomatic pistol from her chest area. As Brown walked toward Adams, she pointed the gun at him. Adams asked her what she was going to do with the gun. Brown did not respond. She pointed the gun down, and fired two shots. After the first shot, Adams turned away from Brown, who fired a second time. The second shot hit Adams in his right calf and he fell. Brown left the location after she fired the shots.
A surveillance video camera captured the event. The trial court admitted the recording into evidence.
A man named Johnnie Wallace also saw Brown fire two shots at Adams. Wallace heard the second shot hit the ground and then saw Adams spin around and holler that he was shot. The second shot ricocheted off the ground and struck Adams in the calf. Wallace saw that Adams was injured, so he called 911.
An ambulance arrived and transported Adams to a hospital. Adams had surgery for the gunshot wound. Adams remained at the hospital for three days. He returned to the hospital for a second surgery because he developed a blood clot. Adams remained at the hospital for an additional three days. During his recovery from the injury, Adams used crutches for about one month.5 (Respondent's Lodgment 6, ECF Dkt. No. 6, pp. 2-3; see People v. Brown, 2019 WL 3562037, at *1 (Cal.App. Aug. 6, 2019)).
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 6 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, 101 (2011). This is “the only question that matters under § 2254(d)(1).” Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless “there is no possibility fairminded 7 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.
In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See 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); see Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
DISCUSSION
I. 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, 8 443 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, 566 U.S. 650, 655 (2012). These standards apply to bench trials as well as jury trials. United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000), cert. denied, 531 U.S. 1177 (2001).
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, 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 9 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).
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. 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). The Court has 10 conducted such an independent review.
The Supreme Court has “made it 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 v. Virginia standard imposes a “twice-deferential standard”). 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).
Petitioner's reliance on cases applying the pre-AEDPA standard of review is unavailing. See Lindh v. Murphy, 521 U.S. 320, 326 (1997) (AEDPA applies to all cases filed after the statute's enactment).
II. Petitioner's Challenge to the Sufficiency of the Evidence to Support Her Aggravated Assault Conviction Does Not Merit Federal Habeas Relief.
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Cal. Penal Code § 240. “The elements of assault with a firearm, under section 245, subdivision (a)(2) include (1) an assault, which requires the intent to commit a battery, and (2) the foreseeable consequence of which is the infliction of great bodily injury upon the subject of the assault.” People v. Cook, 91 Cal.App.4th 910, 920, 111 Cal. Rptr. 11 2d 204 (2001) (citation omitted). “One may commit an assault without making actual physical contact with the person of the victim. . . .” People v. Aguilar, 16 Cal.4th 1023, 1028, 68 Cal.Rptr.2d 655, 945 P.2d 1204 (1997) (citation omitted); see also Alcala v. Scribner, 2008 WL 2019245, at *18 (C.D. Cal. May 6, 2008), aff'd, 394 Fed.Appx. 416 (9th Cir. 2010), cert. denied, 562 U.S. 1189 (2011) (same; assault with a semiautomatic firearm).
[I]t is a defendant's action enabling him to inflict a present injury that constitutes the actus reus of assault. There is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay.People v. Chance, 44 Cal.4th 1164, 1172, 81 Cal.Rptr.3d 723, 189 P.3d 971 (2008).
“[A]ssault is a general intent crime, ‘established upon proof the defendant wilfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.'” Id. at 1169 (citations and quotations omitted; brackets added). Specific intent to injure the victim is not required. People v. Williams, 26 Cal.4th 779, 788, 111 Cal.Rptr.2d 114, 29 P.3d 197 (2001). “[A]ssault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” Id. at 790. The perpetrator need not be subjectively aware of the risk that a battery might occur. Id. 12 at 788 (footnote omitted). “For example, a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery.” Id. at 788 n.3. “Although reckless conduct alone does not constitute a sufficient basis for assault or for battery even if the assault results in an injury to another, when an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the act transcends recklessness, and the intent to commit the battery is presumed; the law cannot tolerate a deliberate and conscious disregard of human safety.” People v. Valdez, 175 Cal.App.3d 103, 107, 220 Cal.Rptr. 538, 539-40 (1985) (citation and quotations omitted).
At the close of the prosecution's case, Petitioner's counsel moved to dismiss all counts based on the alleged insufficiency of the evidence (R.T. 167-68). Petitioner's counsel submitted on the issue with respect to Counts 1 and 3, and the parties argued the issue with respect to Count 2, the attempted murder count (R.T. 168-72).
The court framed the issue as whether Petitioner harbored the specific intent to kill when she fired the gun (R.T. 172). The court found insufficient evidence of specific intent to kill, stating that 13 Petitioner could have fired the gun while pointing it at Adams, but Petitioner had not done so (R.T. 172-73). The court observed that the gun was pointed down when Petitioner fired (id.).
“To prove the crime of attempted murder, the prosecution must establish the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” People v. Canizales, 7 Cal. 5th 591, 602, 248 Cal.Rptr.3d 370, 442 P.3d 686 (2019) (citation and quotations omitted).
Petitioner chose not to testify, and the defense called no witnesses (R.T. 176-78). Following closing argument, the court found Petitioner guilty of the assault, stating:
When you [Petitioner] get out of that car with a loaded firearm and you point it at his face or his chest or wherever you pointed it, you assaulted him with that firearm. And you're guilty of that assault, notwithstanding the fact that in this case you fired the firearm twice. You struck him in the leg.(R.T. 180).
Petitioner contends that the assertedly uncontroverted evidence that Petitioner “intentionally fired her gun into the ground and a ricocheting bullet hit the victim's leg” was insufficient to prove that Petitioner “used her gun in a threatening manner likely to produce death or great bodily injury and that she personally inflicted great bodily injury on the victim” (Petition, ECF Dkt. No. 1, p. 6). The Court of Appeal rejected Petitioner's challenge to the sufficiency of the evidence, stating that any reasonable person would have realized that firing multiple shots at the concrete pavement in the victim's direction and at close range would “‘directly, naturally and probably' strike anyone standing in the immediate area, either 14 directly or by ricochet” (Respondent's Lodgment 6, p. 7; see People v. Brown, 2019 WL 3562037, at *3). The Court of Appeal further rejected Petitioner's argument that the act of pointing a gun at Adams in an allegedly non-threatening manner supposedly did not constitute an assault. The Court of Appeal emphasized the evidence that Petitioner chased Adams down, exited her car, pointed the gun at Adams, and only pointed the gun at the ground at the moment she fired it (Respondent's Lodgment 6, p. 7; see People v. Brown, 2019 WL 3562037, at *3). Finally, the Court of Appeal rejected the materiality of Petitioner's argument that the evidence assertedly showed Adams was not afraid, pointing out that the “victim's fear is not an element of assault” (Respondent's Lodgment 6, p. 7; see People v. Brown, 2019 WL 3562037, at *8).
The Court of Appeal's decision was not unreasonable. The evidence showed that: (1) Petitioner exited her car with the gun in her hand and walked toward Adams; (2) Petitioner raised the gun at approximately eye level and pointed the gun at Adams' chest; (3) as Adams turned, Petitioner lowered the gun and fired two shots; (4) immediately prior to firing the gun, Petitioner was only five to six feet away from Adams; and (5) the second bullet “ricocheted” or “banked” off of the concrete pavement and hit Adams in the leg (R.T. 36, 38, 80, 82-84, 111-12, 118-22, 124, 136, 148-49). As the Court of Appeal reasonably concluded, based on this evidence a reasonable person in Petitioner's position could have predicted that aiming a gun 15 at Adams, then pointing the gun down at the last second and firing into concrete pavement from a distance of only five to six feet from Adams, constituted an assault, i.e., an “unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another, ” which “directly, naturally and probably” could cause an injury to Adams. See People v. Martinez, 75 Cal.App.3d 859, 862, 142 Cal.Rptr. 515 (1977) (defendant's act of throwing a bottle at police constituted an assault, where bottle “first hit one of the departing police cars, bounced off, and then shattered against [officer's] elbow as he was alighting from his police vehicle, throwing glass and beer over him and on his eyeglasses”; “[t]hat respondent may not have intended to strike [the officer] specifically is irrelevant, . . . since it may be inferred from his conduct alone that he had the requisite general intent to commit an assault with a deadly weapon”); see also People v. Valdez, 175 Cal.App.3d at 107-08 (defendant's act of firing shotgun at bulletproof glass window shielding gas station attendant sufficient, at preliminary hearing, to show defendant committed assault with a firearm, “[e]ven assuming [defendant] intended to fire into the booth, but not at [the attendant]”).
Frame 53 of the surveillance video showed Petitioner lowering the gun (R.T. 83-84, 141-42). The shots were fired in Frames 53 and 54 of the video (R.T. 84, 145).
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence to support the aggravated assault conviction was not contrary to, or an objectively unreasonable application of, any clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). 16
In her lengthy Traverse, Petitioner also challenges the sufficiency of the evidence to show that the gun she fired was a semiautomatic firearm, rather than some other type of firearm. Petitioner argues that, without the allegedly improper admission of certain evidence, the remaining evidence assertedly did not suffice to show she used a semiautomatic firearm. Petitioner did not present this claim in her petition for review to the California Supreme Court. She devoted her petition for review to the argument that Petitioner did not commit an assault (see Respondent's Lodgment 7). Hence, this new claim is unexhausted.
A federal court will not grant a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner has exhausted available state remedies. 28 U.S.C. § 2254(b) - (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
Despite the lack of exhaustion, the Court may deny this new claim on the merits because the claim is not colorable. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (federal habeas court may deny on the merits unexhausted claims that are not “colorable”). As indicated above, on review of the sufficiency of the evidence, a federal habeas 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. 120, 131 (2010) (citation omitted; emphasis added). The prosecutor presented the uncontradicted testimony of two witnesses that the weapon was a semiautomatic firearm: (1) Adams, who had seen the firearm previously and had shown Petitioner how to cock the firearm; and (2) the firearms expert, who had reviewed the videotape and 17 photographs of the shooting (see R.T. 36-37, 129-30). Indeed, Petitioner's defense at trial did not include any denial that the firearm was a semiautomatic. Petitioner's counsel never presented any evidence that the firearm was not a semiautomatic, never challenged the testimony of any witness on this basis, and never argued the alleged insufficiency of the evidence that the firearm was a semiautomatic. In short, the type of firearm Petitioner used was never contested at trial. Under the Jackson v. Virginia standard, the evidence sufficed to support the conclusion that Petitioner used a semiautomatic firearm.
This circumstance explains why the attorneys and the trial court sometimes used the words “firearm” and “gun” rather than “semiautomatic, ” word choices to which Petitioner mistakenly imputes some significance.
For the foregoing reasons, Petitioner is not entitled to federal habeas relief on her challenge to the sufficiency of the evidence to support her conviction for assault with a semiautomatic firearm.
III. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Section 12022.7(a) Great Bodily Injury Enhancement Does Not Merit Federal Habeas Relief.
Petitioner received a three-year sentence enhancement under California Penal Code section 12022.7(a). This enhancement applies to any person “who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony.” “‘[G]reat bodily injury' means a significant or substantial 18 physical injury.” Cal. Penal Code § 12022.7(f).
According to Petitioner, the evidence that she “intentionally fired her gun into the ground and a ricocheting bullet hit the victim's leg” does not suffice to support the great bodily injury enhancement (Petition, ECF Dkt. No. 1, p. 6). Petitioner does not dispute that Adams suffered great bodily injury from the gunshot. Although Petitioner does not elucidate her claim, it appears that she intends to argue, as she did on direct review, that the evidence allegedly was insufficient because the ricochet, and not Petitioner's firing of the gun, purportedly was the direct cause of Adam's injuries (see Respondent's Lodgment 3, ECF Dkt. No. 12-5, pp. 33-35; Respondent's Lodgment 7, ECF Dkt. No. 12-9, pp. 24-26).
In People v. Cole, 31 Cal.3d 568, 183 Cal.Rptr. 350, 645 P.2d 1182 (1982), the defendant directed a confederate's attack on the victim and prevented the victim's escape. The California Supreme Court interpreted section 12022.7(a) to require proof that the defendant was the person who “directly” caused the great bodily injury, as opposed to an aider and abettor of the person who “directly” caused the injury. Id. at 572. The court ruled that application of the enhancement was limited “to those who directly perform the act which causes the physical injury to the victim.” Id. at 579.
However, “neither the application of physical force, nor affirmative action by the defendant is necessarily required to support a section 12022.7 GBI enhancement.” People v. Elder, 227 Cal. App. 19 4th 411, 419, 174 Cal.Rptr.3d 192 (2014) (defendant who kidnapped victims for robbery inflicted great bodily injury on one victim where, during struggle between victim and defendant initiated by victim as defendant was trying to escape, defendant broke victim's finger). For example, in People v. Guzman, 77 Cal.App.4th 761, 91 Cal.Rptr.2d 885 (2000), the defendant made an unsafe turn while driving under the influence, causing another vehicle to hit the defendant's car and injure the defendant's passenger. Applying the principles set forth in People v. Cole, the Court of Appeal ruled that the defendant was “not merely an accomplice” but the direct cause of the collision and, hence, the direct cause of the injury. Id. at 764.
Here, Petitioner plainly was the direct cause of the gunshot wound to Adams' leg. Petitioner was not an aider and abettor; she fired the gun into the concrete near Adams, causing the bullet to ricochet and hit Adams' leg. See People v. Frazier, 173 Cal.App.4th 613, 617, 92 Cal.Rptr.3d 794 (2009) (defendant who ordered dog to bite victim directly caused victim's injuries: “defendant is not derivatively liable for the assault; she is the only one culpable.”). The Court of Appeal was not unreasonable in concluding that Petitioner directly caused the injury to Adams within the meaning of section 12022.7(a). See Coronado v. Figueroa, 2017 WL 1351418, at *5 (C.D. Cal. Mar. 6, 2017), adopted, 2017 WL 1348505 (C.D. Cal. Apr. 4, 2017) (state court's rejection of challenge to sufficiency of the evidence to support a section 12022.7(a) enhancement not unreasonable, where petitioner punched victim, who fell backwards in such a way as to cause a heavy bench to fall on victim, resulting in significant injury); Dahlberg v. Sandor, 2011 WL 5241148, at *9 (E.D. Cal. 2011), 20 affirmed, 565 Fed.Appx. 657 (9th Cir. 2014) (state courts' rejection of petitioner's challenge to the sufficiency of the evidence to support section 12022.7(a) enhancement not unreasonable, where petitioner's act of illegally parking his unlit van across a dark roadway at night was the direct cause of an accident that injured a police officer who stopped to investigate); Cerda v. HedgPetch, Kern State Prison, 744 F.Supp.2d 1058, 1073 (C.D. Cal. 2010) (where victim suffered injuries when she tripped after petitioner engaged her in a pushing match, petitioner personally caused great bodily injury; hence, conviction qualified as a serious felony under California Penal Code section 1192.7(c)(8)); People v. Washington, 210 Cal.App.4th 1042, 1046-48, 148 Cal.Rptr.3d 748 (2012) (defendant's admission that he personally caused victim's injury when he struck her and she fell, causing her to sustain injury to her head, sufficient to show defendant directly caused injury under Illinois' definition of “great bodily harm, ” which was the same as California's definition).
Section 1192.7(c)(8) defines a serious felony to include “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice. . . .”
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence to support the section 12022.7(a) enhancement was not contrary to, or an objectively unreasonable application of, any clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 /// 21 (2011). Petitioner is not entitled to federal habeas relief on this claim.
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. 22
Petitioner's request for an evidentiary hearing 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. at 185 (“if a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before the state court, ” even where the state court denied the petition summarily) (footnote omitted); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert. denied, 134 S.Ct. 2823 (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. 23