Opinion
8:21-cv-01833-JWH(MAR)
06-09-2022
RODNEY CARTER, Petitioner, v. L. MARTINEZ, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE MARGO A. ROCCONI United States Magistrate Judge
This Report and Recommendation is submitted to the Honorable John W. Holcomb, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
SUMMARY OF RECOMMENDATION
Petitioner Rodney Carter (“Petitioner”), proceeding pro se, has filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 challenging his April 3, 2019 conviction. ECF Docket No. (“Dkt.”) 1 at 2. Respondent filed an Answer to the Petition (“Answer”), and Petitioner filed a Reply. Dkts. 9; 13. For the reasons that follow, the Court recommends: (1) accepting this Report and Recommendation; (2) DENYING the Petition; (3) DISMISSING this action with prejudice; and (4) DENYING a Certificate of Appealability.
All citations to electronically filed documents refer to the CM/ECF pagination.
II.
PROCEDURAL HISTORY
A. STATE COURT PROCEEDINGS
On March 5, 2019, following a jury trial in the Superior Court of Orange County, Petitioner was convicted of carrying a loaded unregistered firearm in public (Cal. Penal Code § 25850(c)(6)). Dkts. 1 at 2; 10-1 at 57; 10-14 at 3. The trial court declared a mistrial as to the other thirteen (13) counts because the jury was unable to reach a verdict on them. Dkts. 10-1 at 57; 10-14 at 3. Petitioner was retried, and on April 3, 2019, a second jury convicted Petitioner of: one (1) count of child endangerment (Cal. Penal Code § 273a(a)); one (1) count of carrying a concealed firearm in a vehicle (Cal. Penal Code § 25400); one (1) count of resisting arrest (Cal. Penal Code § 148(a)(1)); three (3) counts of assault with a semiautomatic firearm (Cal. Penal Code § 245(b)); two (2) additional counts of carrying a loaded unregistered firearm in public (Cal. Penal Code § 25850(c)(6)); and one (1) count of shooting at an occupied vehicle (Cal. Penal Code § 246). Dkts. 1 at 2; 10-1 at 76-77, 81-84; 10-14 at 4. The jury also found true allegations that Petitioner personally used a firearm during the assaults (Cal. Penal Code § 12022.5(a)). Dkts. 1 at 2; 10-1 at 81-84; 10-14 at 4. On May 24, 2019 Petitioner was sentenced to a total of fourteen (14) years and eight (8) months in state prison. Dkts. 1 at 2; 10-1 at 88; 10-14 at 4.
Respondent identifies the documents lodged in support of the Answer as follows:
(1) Clerk's Transcript, three volumes, in Orange County Superior Court case no. 16WF0119 (Dkts. 10-1-10-3);
(2) Reporter's Transcript, three volumes, in Orange County Superior Court case no. 16WF0119 (Dkts. 10-4-10-6);
(3) Supplemental Reporter's Transcript, three volumes, in Orange County Superior Court case no. 16WF0119 (Dkts. 10-7-10-9);
(4) [Petitioner]'s Opening Brief, filed in Court of Appeal case no. G057842 (Dkt. 10-10);
(5) [Petitioner]'s Supplemental Brief, filed in Court of Appeal case no. G057842 (Dkt. 1011);
(6) Respondent's Brief, filed in Court of Appeal case no. G057842 (Dkt. 10-12);
(7) Reply Brief filed in Court of Appeal case no. G057842 (Dkt. 10-13);
(8) Opinion, filed in Court of Appeal case no. G057852 (Dkt. 10-14);
(9) Petition for Writ of Mandate, filed in California Supreme Court case no. S266899 (Dkt. 10-15);
(10) Petition for Review filed in California Supreme Court case no. 266899 (Dkt. 10-16);
(11) Order denying Petition for Writ of Mandate in California Supreme Court case number S266510 (Dkt. 10-17); and
(12) Order denying Petition for Review in California Supreme Court case number S266899 (Dkt. 10-18).Dkt. 10 at 1-2.
Petitioner appealed, but his counsel filed a brief pursuant to People v. Wende, 25 Cal.3d 436 (1979), advising the court he found no arguable issues. Dkts. 10-10; 1014 at 4. The court ordered the parties to brief the issue of whether to strike the firearm enhancements in the interest of justice pursuant to Senate Bill No. 620 (“SB 620”). Dkts. 10-11; 10-14 at 4. Petitioner then filed a brief on his own behalf, raising six (6) claims:
(1) Trial counsel was ineffective for failing to object to the second trial on double jeopardy grounds;
(2) There was insufficient evidence to prove Petitioner was the person who fired the firearms because the firearms expert was unable to say for certain Petitioner's gun fired the shot that bullets at issue;
(3) Appellate counsel was ineffective for failing to raise the issue of whether his second trial violated the federal prohibition on double jeopardy;
(4) Petitioner is entitled to resentencing because the trial court did not know it had discretion to dismiss the firearms enhancements pursuant to SB 620;
(5) The second trial violated the federal prohibition on double jeopardy; and
(6) The trial court erred by denying Petitioner's request for probation.Dkts. 1 at 2-3; 10-14 at 4. The court of appeal affirmed his conviction and sentence in a reasoned opinion on December 14, 2020. Dkts. 1 at 3; 10-14.
Petitioner then filed a Petition for Writ of Mandate, as well as a Petition for Review containing the first five (5) claims from Petitioner's direct appeal, in the California Supreme Court. Dkts. 1 at 3; 10-15; 10-16. The California Supreme Court denied the petitions on February 17, 2021, and March 10, 2021, respectively. Dkts. 1 at 3; 10-17; 10-18.
B. FEDERAL HABEAS PETITION
On November 11, 2021, Petitioner, proceeding pro se, filed the instant Petition. Dkt. 1. On January 13, 2022, Respondent filed an Answer to the Petition. Dkt. 9. Petitioner filed a Reply on February 7, 2022. Dkt. 13.
III.
SUMMARY OF FACTS
For a summary of the facts, this Court relies on the California Court of Appeal's opinion as those facts pertain to Petitioner's claims:
Petitioner does not appear to argue that the California Court of Appeal opinion was based on an unreasonable determination of the facts. Furthermore, the Court has independently reviewed the trial record and finds the Court of Appeal's summary accurate. Still, the Court notes where Petitioner appears to contest a particular portion of the Court of Appeal's summary.
On December 31, 2015, Cherokee Wallace was driving in Anaheim with her boyfriend Keith Livingston when [Petitioner] started tailgating them in his car for no apparent reason. Wallace tried to evade [Petitioner], but he pulled alongside her car, lowered his window and flashed a semiautomatic handgun. Then he pointed the gun toward Wallace's car and yelled out that he was not “fucking playing.” To prove it, [Petitioner] fired a shot into the roadway, near Wallace's car. After that, Wallace managed to lose [Petitioner] in traffic, but neither she nor Livingston reported the incident to the police.
A week later, Alex Herrera had an even more harrowing encounter with [Petitioner] while driving in Los Alamitos. Herrera had just turned onto Katella Avenue when [Petitioner] pulled alongside him and rolled down his window. Like Wallace and Livingston, Herrera had no prior contact with [Petitioner] and no idea what he was up to. He watched with great trepidation as [Petitioner] pulled out a black handgun and fired a shot into the passenger side of his car. Following the shooting, Herrera continued driving to a nearby military base, where he worked as a police officer, and reported the incident to authorities.
The next week, Wallace and Livingston happened to spot [Petitioner] in the parking lot of a shopping center, not far from where they had encountered him before. While [Petitioner] was sitting in his car, Livingston approached his vehicle on foot to get his license number. He also called 911 and reported [Petitioner] as the person who had shot at him two weeks earlier. Seeing Livingston, [Petitioner] exited his car and asked him what he was doing. Livingston dodged the question and ducked into a nearby store. Then Garden Grove Police Officer Danny Mihalik arrived on the scene and contacted [Petitioner] near his car.
During his encounter with Mihalik, [Petitioner] was agitated and upset. Against Mihalik's repeated demands, he tried to access his car multiple times, and eventually, Mihalik had to use pepper spray to effectuate his arrest. By then, other officers had arrived on the scene. They looked inside [Petitioner]'s car and discovered [Petitioner]'s four-year-old daughter in the back seat wearing a backpack. Upon removing the child from the vehicle, they searched the backpack and found a loaded semiautomatic handgun.
As it turned out, the gun was not registered to [Petitioner], but it did contain his DNA. A firearms expert for the prosecution test-fired the gun and compared the spent bullets to the bullet that was recovered from Herrera's car. Although the expert was unable to declare a conclusive match between the bullets, meaning he couldn't tell for sure if the bullet from Herrera's car was actually fired from [Petitioner]'s gun, he did testify the two sets of bullets shared many of the same characteristics.
[Petitioner] was charged with a multitude of crimes. At trial, he testified he had nothing to do with the subject shootings. He also denied being uncooperative when the police confronted him and took him into custody. Although [Petitioner] admitted knowing about the gun in the backpack, he testified the backpack was tucked into the rear area of his car, outside his daughter's reach. He had no idea how she ended up with it.
The jury struggled to reach a verdict; it convicted [Petitioner] of carrying a loaded unregistered firearm in public, but it deadlocked on all of the remaining charges, and the trial court declared a mistrial on those counts.
The matter was then retried, and this time around, [Petitioner] did not fare as well. The jury convicted him of two additional counts of carrying a loaded unregistered firearm in public, three counts of assault with a semiautomatic firearm, and one count each of carrying a concealed firearm in a vehicle, shooting at an occupied vehicle, child endangerment and resisting arrest. The jury also found true allegations [Petitioner] personally used a firearm during the assaults. (Pen. Code, § 12022.5, subd. (a); all further statutory references are to the Penal Code.)Dkt. 10-14 at 2-3.
In Claim Two, Petitioner contends there was insufficient evidence to prove he was the individual at the two (2) “road rage” incidents and therefore contests the California Court of Appeal's summary to the extent it identifies him as the wielder of the firearm at these two (2) incidents. Dkt. 1 at 5-6, 22.
IV.
PETITIONER'S CLAIMS FOR RELIEF
The Petition presents the following five (5) claims:
(1) Trial counsel was ineffective for failing to object to the second trial on double jeopardy grounds (“Claim One”);
(2) There was insufficient evidence to prove Petitioner was the person who fired the firearms because the firearms expert was unable to say for certain Petitioner's gun fired the bullets at issue (“Claim Two”);
(3) Appellate counsel was ineffective for failing to raise the issue of whether his second trial violated the federal prohibition on double jeopardy (“Claim Three”);
(4) Petitioner is entitled to resentencing because the trial court did not know it had discretion to dismiss the firearms enhancements pursuant to SB 620 (“Claim Four”); and
(5) The second trial violated the federal prohibition on double jeopardy (“Claim Five”).Dkts. 1 at 6-7, 12-30.
Respondent contends that Petitioner's claims fail on their merits. Specifically, Respondent argues that:
(1) The California Court of Appeal reasonably rejected Claims One, Three, and Five because Petitioner's second trial did not violate the federal prohibition on double jeopardy and therefore neither trial nor appellate counsel can be found ineffective for failing to make a meritless objection;
(2) The California Court of Appeal reasonably rejected Claim Two because “state court correctly viewed the evidence in light most favorable to the judgment and determined that substantial evidence supports Carter's identity as the gunman;” and
(3) Claim Four does not present a cognizable federal habeas claim, and in any event, the California Court of Appeal's opinion “is supported by substantial evidence and cannot be fairly viewed as an unreasonable determination of facts.”Dkt. 9-1 at 9-12.
V.
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief on a claim adjudicated on its merits in state court unless the adjudication:
(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).
“Clearly established Federal law” for purposes of § 2254(d)(1) consists of “the holdings, as opposed to the dicta, of th[e] [United States Supreme] Court's decisions” in existence at the time of the state court adjudication. Williams v. Taylor, 529 U.S. 362, 412 (2000). However, “circuit court precedent may be ‘persuasive' in demonstrating what law is ‘clearly established' and whether a state court applied that law unreasonably.” Maxwell v. Roe, 628 F.3d 486, 494 (9th Cir. 2010). A state court decision rests on an “unreasonable application” of federal law for purposes of § 2254(d)(1) where a state court identifies the correct governing rule, but unreasonably applies that rule to the facts of the particular case. Andrews v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (citing Williams, 529 U.S. at 407-08). “It is not enough that a federal habeas court concludes ‘in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.' ” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 76 (2003)). “The state court's application of clearly established law must be objectively unreasonable.” Lockyer, 538 U.S. at 75.
Overall, AEDPA established “a difficult to meet ... and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal citation and quotation marks omitted). “That deference, however, ‘does not by definition preclude relief.' ” Andrews, 944 F.3d at 1107 (citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
Where the last state court disposition of a claim is a summary denial, this Court must review the last reasoned state court decision addressing the merits of the claim under AEDPA's deferential standard of review. Maxwell v. Roe, 628 F.3d 486, 495 (9th Cir. 2010); see also Berghuis v. Thompkins, 560 U.S. 370, 380 (2010); Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991).
Here, Petitioner's claims will be reviewed under AEDPA's deferential standard of review for claims “adjudicated on the merits.” 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 99 (2011). Petitioner raised all five (5) of his claims on direct appeal in the California Court of Appeal. Dkt. 10-14. The court of appeal rejected the claims in a reasoned opinion and the California Supreme Court denied further review. Id.; Dkts. 10-17; 10-18. Thus, the Court will look to the California Court of Appeal's December 14, 2020 opinion on direct review as the last reasoned decision for Petitioner's claims.
VI.
DISCUSSION
A. CLAIMS ONE, THREE, AND FIVE - DOUBLE JEOPARDY AND INEFFECTIVE ASSISTANCE OF COUNSEL (“IAC”) CLAIMS
In Claim Five, Petitioner argues that his second trial violated the federal prohibition on double jeopardy. Dkt. 1 at 5-6, 29-30. In Claims One and Three, Petitioner argues his trial and appellate counsel were ineffective for failing to raise the double jeopardy issue. Dkt. 1 at 5-6, 18-20, 24-25.
1. California Court of Appeal's December 14, 2020 Opinion
The California Court of Appeal rejected Petitioner's double jeopardy, explaining that:
[Petitioner] contends his double jeopardy rights were violated when he was retried on the charges the jury deadlocked on during his first trial, and his attorney was ineffective for not moving to dismiss the charges on that basis. However, it is well established the constitutional prohibition against double jeopardy does not bar retrial following a hung jury.. .Therefore, [Petitioner's second trial did not violate double jeopardy principles, and his attorney was not ineffective for failing to raise this issue below.
Lastly, appellant contends his appellate attorney was ineffective for filing a Wende brief and not raising any arguments on his behalf. However, when counsel is unable to identify any arguable issue on appeal, he or she has an ethical obligation to forego making frivolous claims and comply with the procedures outlined in Wende, which have been approved by the United States Supreme Court. Thus, appellate counsel did not render ineffective assistance by filing a Wende brief. Having examined the entire record, we are satisfied appellate counsel has fulfilled his responsibilities under Wende and that no additional issues exist to warrant further briefing or discussion.Dkt. 10-14 at 6 (citations omitted).
2. Applicable law
a. Double jeopardy
The Double Jeopardy Clause of the Fifth Amendment “protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense.” Monge v. California, 524 U.S. 721, 727-28 (1998). Retrial after an acquittal is prohibited whether the acquittal is “express or implied by jury silence.” Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir. 2007) (citing Green v. United States, 355 U.S. 184, 191 (1957)). “An implied acquittal occurs when a jury returns a guilty verdict as to a lesser included or lesser alternate charge, but remains silent as to other charges, without announcing any signs of hopeless deadlock.” Id.
“In contrast to an implied acquittal, retrial is permitted where there is a mistrial declared due to the ‘manifest necessity' presented by a hung jury.” Id. at 982 (citing United States v. Perez, 22 U.S. 579, 580 (1824)). “A hung jury occurs when there is an irreconcilable disagreement among the jury members.” Id. When the trial court declares a mistrial due to a hung jury, the record should reflect that the jury is “genuinely deadlocked.” United States v. Jefferson, 566 F.3d 928, 936 (9th Cir. 2009) (citing Richardson v. United States, 468 U.S. 317, 324 (1984). “The trial judge's decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court.” Arizona v. Washington, 434 U.S. 497, 510 (1978).
b. IAC
Under Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel claims must satisfy a two-prong test: (1) counsel's performance was deficient, and (2) prejudice resulted from the deficient performance. 466 U.S. at 687. Generally, counsel is not ineffective for failing to raise a meritless objection. Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (referencing Knowles v. Mirzayance, 556 U.S. 111 (2009)); Baumann v. U.S., 692 F.2d 565, 572 (9th Cir. 1982) (“The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel”).
3. Analysis
On its face, Petitioner's retrial appears to be one explicitly permitted by clearly established federal law-retrial after a mistrial declared due to a hung jury. See Brazzel, 491 F.3d at 982 (“[R]etrial is permitted where there is a mistrial declared due to the ‘manifest necessity' presented by a hung jury.”). The only distinguishing characteristic of Petitioner's case is that he was convicted on one (1) count during the first trial-carrying a loaded unregistered firearm (Cal. Penal Code § 25850(c)(6)) (“Count Three”). Dkts. 1 at 2; 10-1 at 57; 10-14 at 3. Thus, the trial court declared a mistrial as to the other, deadlocked counts, but not as to Count Three. Dkts. 10-1 at 57; 10-14 at 3. Still, the charging document relied upon for retrial included Count Three. See Dkts. 10-1 at 63 (noting Count Three was renumbered as “count 11” for retrial; setting “count 11” for sentencing only because defendant had already been found guilty on count 11 in the previous trial); 10-6 at 94-95 (“The court then will formally have this filed as the information we are working off of. It does address all counts, even count 11 which is not before this jury but is a sentencing.”).
The counts were renumbered at the second trial, and thus “count three” during the second trial is not the same “count three” Petitioner was convicted of during the first trial. The Court refers to the conviction from the first trial as “Count Three” here to be consistent with the Petition.
Liberally construed, the Petition and Reply advance three (3) arguments as to why Petitioner's second trial violated double jeopardy principles: (1) the jury reached a verdict on Count Three in Petitioner's first trial, and thus the trial, by definition, did not result in a “hung jury”; (2) Cal. Penal Code § 25850(c)(6) is a lesser-included offense of one or more of the counts brought in the second trial, and thus Petitioner's conviction on Count Three constituted an implicit acquittal of the other counts and barred the second trial; and (3) even though Count Three was not before the jury in the second trial, the fact that the information in the second trial contained Count Three was alone sufficient to violate Petitioner's double jeopardy rights. See Dkts. 1 at 6, 29-30; 13 at 16.
i. Hung jury
In his first argument, Petitioner attempts to distinguish his case from clearly established case law on double jeopardy by arguing that, while his first trial ended in mistrial, the mistrial could not have been declared due to a “hung jury” because the jury reached a verdict on Count Three, and thus by definition could not be a “jury whose members are so divided and split in their beliefs that they cannot reach a verdict or decision.” Dkt. 1 at 29.
Petitioner's argument is simply a semantics issue. Though the first jury “reached a verdict” on Count Three, they clearly could not “reach a verdict” on the other counts. The jury was therefore a “hung jury” with respect to all counts besides Count Three. Petitioner cites to no authority, clearly established or otherwise, interpreting the term “hung jury” to require a complete deadlock on every count.
In fact, Petitioner's argument plainly contradicts Ninth Circuit case law on retrials after hung juries. For example, in Jefferson, the defendant appealed a district court's denial of his double jeopardy motion when he was retried on an intent to distribute offense after the first jury found him guilty of the lesser offense of attempted possession. Jefferson, 566 F.3d at 935-36. The Ninth Circuit reasoned that, even though the jury had found the defendant guilty of a lesser-included offense at the first trial, the jury was clearly deadlocked on the intent to distribute offense. Id. Thus, the Ninth Circuit held, the district court properly declared a mistrial based on the “manifest necessity” created by a hung jury, and a retrial did not violate double jeopardy principles. Id.
The Ninth Circuit took no issue with the fact that the defendant was retried after the jury was deadlocked on one count and reached a verdict on the other, generally. In fact, the Ninth Circuit appeared to take that position for granted from the outset, proceeding to discuss the question of whether the conviction on intent to distribute count constituted an implicit acquittal. Ultimately, the Ninth Circuit held that, because the jury was clearly deadlocked on the intent to distribute count, as opposed to simply “silent” on it, the conviction on a lesser-included offense did not bar retrial as an implicit acquittal. Id. This conclusion necessarily implies that a conviction on one count does not automatically bar retrial on other, deadlocked counts. In fact, the Ninth Circuit appeared to presume such retrials are generally permitted.
Thus, returning to Petitioner's case, the relevant question in determining whether the trial court properly declared a mistrial due to a hung jury is whether the first jury was genuinely deadlocked on the specific counts before the second jury on retrial. Here, though the jury reached a verdict on Count Three, there is no question the jury was deadlocked on the other counts. After the foreman notified the trial court that the jury was deadlocked on all counts besides Count Three, the trial court specifically inquired as to each specific jury member, offered to help clarify or repeat any instructions or information, and ultimately found that the jury was “hopelessly deadlocked,” all on the record. Dkts. 10-1 at 57; 10-9 at 176-186. This appears to line up exactly with the definition of a “hung jury” set forth by the Ninth Circuit in Brazzel:
In contrast to an implied acquittal, retrial is permitted where there is a mistrial declared due to the “manifest necessity” presented by a hung jury .. .A hung jury occurs when there is an irreconcilable disagreement among the jury members. A “high degree” of necessity is required to establish a mistrial due to the hopeless deadlock of jury members .. The record should reflect that the jury is “genuinely deadlocked.” . .“The trial judge's decision to declare a mistrial when he considers the jury deadlocked is ... accorded great deference by a reviewing court.”Brazzel, 491 F.3d at 982. Accordingly, the Court of Appeal's determination that the first jury was a “hung jury” with respect to all counts besides Count Three was not contrary to clearly established federal law.
ii. Lesser-included offense
Next, like the defendant in Jefferson, Petitioner appears to argue his retrial violated double jeopardy principles because his conviction on Count Three constituted an implied acquittal on the counts he was convicted of at the second trial. Dkt. 1 at 29-30. Petitioner is correct that double jeopardy principles prevent retrial on charges that a defendant was impliedly acquitted of-i.e., where the original jury found the defendant guilty of the lesser-included offense while being “silent” on the greater offense. See Brazzel, 491 F.3d at 981. However, here it is not clear that Count Three, carrying a loaded unregistered firearm (Cal. Penal Code § 25850(c)(6)), is a “lesser-included offense” of anything Petitioner was convicted of at his second trial.
Furthermore, as noted above, the Ninth Circuit explained in Jefferson that a defendant is not impliedly acquitted of a greater offense where the jury is hopelessly deadlocked on the greater offense, rather than simply “silent” on it. Jefferson, 566 F.3d at 935-36. Here, the trial court thoroughly determined and explicitly found that the jury was hopelessly deadlocked as to all counts in the first trial besides Count Three. Dkts. 10-1 at 57; 10-9 at 176-186. Thus, even if Count Three was a lesser-included offense of any of the convicted counts from the second trial, the second trial would not have violated double jeopardy principles here because the first jury was explicitly deadlocked on all counts besides Count Three. Therefore, Petitioner's argument that the Court of Appeal's rejection of his double jeopardy claim was contrary to clearly established federal law because his Count Three conviction constituted an implied acquittal of the convictions sustained in the second trial must fail.
iii. Inclusion of Count Three in the information at the second trial
Finally, Petitioner appears to argue that the fact that Count Three was explicitly included in the charging document for the second trial was alone sufficient to bar retrial based on double jeopardy principles. Dkts. 1 at 29-30; 13 at 6. Petitioner does not cite to, nor is the Court aware of, any clearly established federal law that supports this proposition.
Generally, the Double Jeopardy Clause “is not an absolute bar to successive trials.” Jefferson, 566 F.3d at 935 (citing Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308 (1984)). As discussed above, the Ninth Circuit has cited clearly established federal law to sanction retrials closely resembling Petitioner's. Furthermore, though Count Three was included in the information used at the retrial, Count Three was not before the second jury and was only included for sentencing purposes. Dkts. 10-1 at 63 (noting Count Three was renumbered as “count 11” for retrial; setting “count 11” for sentencing only because defendant had already been found guilty on count 11 in the previous trial); 10-6 at 94-95 (“The court then will formally have this filed as the information we are working off of. It does address all counts, even count 11 which is not before this jury but is a sentencing.”). Under these circumstances, this Court cannot conclude the Court of Appeal's rejection of Petitioner's double jeopardy claim was contrary to clearly established law based solely on the inclusion of Count Three in the charging document at the retrial.
Furthermore, while prejudice does not explicitly factor into the double jeopardy analysis, the Court notes that Petitioner has not explained how Count Three's inclusion in the charging document at retrial prejudiced him given that he was not tried or convicted for Count Three at the retrial or punished for Count Three twice. Indeed, other courts have dismissed double jeopardy arguments due, at least in part, to an absence of prejudice. See United States v. Jackson, 155 F.3d 942, 947-48 (8th Cir. 1998) (concluding trial outcome was not prejudiced by any double jeopardy issue because the defendant was sentenced on all counts concurrently, and therefore sentencing on one or both counts at issue would not change sentence); Lonberger v. Marshall, 808 F.2d 1169, 1172 (6th Cir. 1987) (declining to engage in double jeopardy analysis because any violation would not have prejudiced petitioner).
iv. IAC
As shown above, Petitioner's double jeopardy claim lacks merit. Accordingly, the California Court of Appeal's decision that neither Petitioner's trial counsel nor his appellate counsel can be held ineffective for failing to raise the meritless double jeopardy argument is not contrary to clearly established federal law. See Sexton, 679 F.3d at 1157 (“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless.”).
B. CLAIM TWO - SUFFICIENCY OF THE EVIDENCE
In Claim Two, Petitioner contends there was insufficient evidence to show he was the individual wielding the firearm at the two (2) December, 2015 incidents. Dkt. 1 at 5-6, 16.
1. California Court of Appeal's December 14, 2020 Opinion
The California Court of Appeal found the following regarding Petitioner's claim:
In attacking his convictions, [Petitioner] also points out the prosecution's firearms expert was unable to say for certain that [Petitioner's] gun (i.e., the gun found in his daughter's backpack) fired the shot that hit Herrera's car. Given this fact, and because there was no gunshot residue found inside his car, [Petitioner] contends there was insufficient evidence to prove he was the person who fired on the victims.
However, Wallace and Livingston both identified [Petitioner] in court as the person who shot at them from his car. And although Herrera was unable to identify [Petitioner] at trial, he was able to identify his distinctive car and his gun. Furthermore, the firearms expert testified the bullet recovered from Herrera's car had many of the same characteristics as the bullets he test-fired from [Petitioner]'s gun, which suggested the recovered bullet was fired from [Petitioner's gun. Taken as a whole, the evidence was sufficient to support [Petitioner's gun-related convictions.Dkt. 10-14 at 6.
2. Applicable law
a. Insufficient evidence
Pursuant to the Fourteenth Amendment's Due Process Clause, a criminal defendant may be convicted only “upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court has held that, in determining whether the evidence is sufficient to support a conviction, the question is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005) (applying Jackson to federal habeas claim attacking sufficiency of the evidence to support a state conviction). “Put another way, the dispositive question under Jackson is ‘whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.' ” Chein v. Shumsky, 373 F.3d 978, 982-83 (9th Cir. 2004) (en banc) (quoting Jackson, 443 U.S. at 318).
Accordingly, when the factual record supports conflicting inferences, the federal 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.” Jackson, 443 U.S. at 326. In other words, “Jackson cautions reviewing courts to consider the evidence ‘in the light most favorable to the prosecution.' ” Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 319).
To determine what evidence is necessary to convict on the crime charged, the federal court must refer to the substantive elements of the criminal offense as defined by state law and look to state law. Jackson, 443 U.S. at 324 n.16; Juan H., 408 F.3d at 1275. Additionally, “[circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted).
b. Relevant California law
In the Petition, Petitioner appears to argue that there was insufficient evidence to convict him on the counts stemming from the second “road rage” incident because the firearm expert could not conclusively state that the handgun found in Petitioner's possession was the same weapon that fired the bullet in Herrera's vehicle. Dkt. 1 at 5-6, 22. Thus, the relevant counts and California Penal Code sections are: (1) “Count Eight,” shooting at an occupied motor vehicle (Cal. Penal Code § 246); (2) “Count Nine,” assault with a semiautomatic firearm (Cal. Penal Code § 245(b)); and (3) “Count Ten,” carrying a loaded unregistered firearm in public (Cal. Penal Code § 25850(c)(6)). Dkt. 10-2 at 188-90 (second amended information).
In the Reply, Petitioner also appears to argue there was insufficient evidence to convict him on the remaining counts because he was acquitted of them in the first trial. Dkt. 13 at 6-7. This argument appears to merely be a variation of Petitioner's double jeopardy argument, which, as shown above, lacks merit.
The elements of shooting at an occupied motor vehicle are: (1) the defendant willfully and maliciously shot a firearm and (2) the defendant shot the firearm at an occupied motor vehicle. Cal. Penal Code § 246; see also CALCRIM 965; Dkt. 10-2 at 233.
The elements of assault with a semiautomatic firearm are: (1) the defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person; (2) the defendant did that act willfully; (3) when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (4) when the defendant acted, he had the present ability to apply force with a semiautomatic firearm. Cal. Penal Code § 245(b); see also CALCRIM 875; Dkt. 10-2 at 228-29.
The elements of carrying a loaded unregistered firearm in public are: (1) the defendant carried a loaded firearm in a vehicle; (2) the defendant knew he was carrying a firearm (3) at the time he was in a public place or street in an incorporated city where it was unlawful to discharge a firearm; and (4) the defendant was not listed with the Department of Justice as the registered owner of the firearm. Cal. Penal Code § 25850; see also CALCRIM 2030, 2045; Dkt. 10-2 at 220-221.
3. Analysis
Here, Petitioner does not appear to argue that the evidence was insufficient to satisfy the elements of Counts Eight, Nine, and Ten generally-i.e., to show that someone shot a semiautomatic firearm at Herrera's occupied vehicle on a public street. Rather, Petitioner only argues that the evidence was insufficient to show he was the shooter. Dkts. 1 at 5-6, 22; 13 at 6-7. Specifically, Petitioner cites to the prosecution's firearm expert's testimony, which failed to conclusively link the bullet in Herrera's vehicle to the gun Petitioner was found with. Dkts. 1 at 5-6, 22.
If the bullet was the only piece of evidence potentially linking Petitioner to the Herrera incident, Petitioner's argument may have merit. However, there was other evidence linking Petitioner to the incident. As the Court of Appeal noted, while Herrera did not see enough of the face of the person who shot at his vehicle to identify the individual, he identified the shooter's vehicle as a large white dodge with a large sticker and damage on the back. Dkt. 10-5 at 72-74; 84-85. Petitioner was later found with a gun inside a similar vehicle, which was registered to his wife. Id. at 11, 58-63. Herrera identified Petitioner wife's vehicle as the same one from the incident. Id. at 72-74. Furthermore, there was circumstantial evidence that Petitioner was the shooter; Wallace and Livingston positively identified him as the shooter in a similar, related incident and similarly identified his vehicle. Dkts. 10-4 at 17-18, 23, 89-91.
Additionally, though the firearms expert could not conclusively link the bullet in Herrera's vehicle to the gun found in Petitioner's possession, the expert testified that the gun could have fired the bullet at issue because the bullet shared certain “class characteristics” with the gun. Dkt. 10-5 at 126. The jury was free to consider the expert's testimony to the extent they found it credible or persuasive.
Overall, assuming the jury resolved any inferences posed by this evidence in the prosecution's favor, a reasonable jury could have found Petitioner was the individual who shot at Herrera's vehicle. Therefore, the Court of Appeal's conclusion that the evidence was sufficient was not contrary to the clearly established federal law set forth in Winship and Jackson.
C. CLAIM FOUR - SB 620 CLAIM
In Claim Four, Petitioner argues he is entitled to resentencing because the trial court did not know that it had the discretion to dismiss firearm enhancements for sentencing purposes. Dkt. 1 at 6, 27.
1. California Court of Appeal's December 14, 2020 Opinion
The California Court of Appeal provided the following background regarding Petitioner's claim:
As noted above, the jury found true allegations that, in committing the charged assaults, [Petitioner] personally used a firearm within the
meaning of section 12022.5, subdivision (a). As amended by SB 620, that section gives the trial court discretion to strike a firearm enhancement in the interest of justice pursuant to section 1385. (§ 12022.5, subd. (c).) However, the trial judge did not allude to this discretion in imposing sentence on the firearm enhancements. In fact, at no point during the sentencing hearing did the judge mention SB 620 or the prospect of striking the enhancements in the interest of justice. But, contrary to [Petitioner]'s contention, that does not mean the judge was unaware of her authority to do so.
SB 620 became effective on January 1, 2018, and [Petitioner] was not sentenced until nearly a year and a half later, in late May of 2019. Thus, the trial judge had plenty of time to get up to speed on SB 620, and we presume she did so by the time of [Petitioner]'s sentencing hearing. ...
In addition, defense counsel's sentencing brief informed the judge she had discretion to strike [Petitioner]'s firearm enhancements pursuant to SB 620. And, at the outset of the sentencing hearing, the judge announced she had read and considered the parties' sentencing briefs. Under these circumstances, it is reasonable to conclude the judge was aware of her striking authority under SB 620. Indeed, because there is nothing in the record showing otherwise, we must adopt that conclusion. ... We thus reject [Petitioner]'s claim of error respecting the trial court's failure to strike his firearm enhancements.Dkt. 10-14 at 5-6 (citations omitted).
2. Applicable law
A district court may entertain a petition for writ of habeas corpus filed by a person in state custody “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Matters relating to state sentencing are governed by state law and generally are not cognizable on federal habeas review. See, e.g., Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding the sentencing error claim under section 654 of the California Penal Code is not cognizable on federal habeas review); see also Godfrey v. Warden PVSP, 2020 WL 3544980, at *2 (N.D. Cal. June 30, 2020) (a state court's alleged misapplication of Senate Bill 620 does not present a federal habeas claim); Maldonado v. Koenig, 2019 WL 3530316, at *2 (E.D. Cal. Aug. 2, 2019) (same). To state a cognizable federal habeas claim based on a claimed state sentencing error, a petitioner must show that the error was “so arbitrary or capricious as to constitute an independent due process” violation. Richmond v. Lewis, 506 U.S. 40, 50 (1992).
3. Analysis
Here, Petitioner's claim regarding SB 620 appears to relate only to state sentencing and therefore is not cognizable on federal habeas review. See, e.g., Godfrey, 2020 WL 3544980 at *2. Furthermore, even assuming Petitioner's claim does present a federal question, Petitioner has not shown the trial court's failure to use discretion to strike Petitioner's firearm enhancement was “so arbitrary or capricious as to constitute a due process” violation, see Richmond, 506 U.S. at 50, and therefore has not shown that the Court of Appeal's rejection of Petitioner's claim was contrary to clearly established federal law.
Senate Bill 620 became effective on January 1, 2018, and amended California Penal Code sections 12022.5 and 12022.53 to give discretion to the sentencing court to strike a firearm enhancement in the interest of justice. See Cal. Penal Code, §§ 12022.5(c), 12022.53(h); People v. Valles, 49 Cal.App. 5th 156, 165 (2020). Thus, as the Court of Appeal noted, SB 620 had been in effect for nearly a year and a half before Petitioner was sentenced. Dkt. 10-14 at 5-6. In fact, Petitioner's counsel cited SB 620 in the sentencing brief. Id. Under these circumstances, and in the absence of any evidence to the contrary, this Court cannot find that it was unreasonable for the Court of Appeal to presume the trial court was aware of SB 620, and simply declined to exercise its discretion to strike the firearm enhancement. Petitioner cites no authority to support that the trial court's failure to cite to or explicitly mention SB 620 at the sentencing hearing could somehow constitute a due process violation.
Finally, to the extent Petitioner argues the trial court's failure to strike the firearm enhancement somehow constituted an abuse of its discretion, this Court would still be powerless to grant relief on Petitioner's claim. See Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998) (federal habeas relief is available “only for constitutional violation, not for abuse of discretion”).
VII.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), a Certificate of Appealability may issue “if the applicant has made a substantial showing of the denial of a constitutional right.” The Supreme Court has held that this standard means a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.'” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
The undersigned finds that reasonable jurists could not debate the propriety of dismissing Petitioner's Petition here. Thus, it is recommended that a Certificate of Appealability be DENIED.
VIII.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the Court issue an Order:
(1) accepting this Report and Recommendation;
(2) DENYING the Petition;
(3) DISMISSING this action with prejudice; and
(4) DENYING a Certificate of Appealability.