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Case 1:11-cv-00121-JLT Document 21 Filed 09/19/13 Page 1 of 29



















UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

ARMANDO LOPEZ,





Petitioner,

v.

RAUL LOPEZ, Warden,

Respondent.









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Case No.: 1:11-cv-00121-JLT

ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS (Doc. 1)

ORDER DIRECTING CLERK OF THE COURT TO
ENTER JUDGMENT AND CLOSE FILE

ORDER DECLINING TO ISSUE CERTIFICATE
OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The petition was filed on January 24, 2011. (Doc. 1). On March 2,

2011, Petitioner filed his written consent to the jurisdiction of the Magistrate Judge for all purposes.

(Doc. 11). On February 17, 2011, Respondent filed his written consent to the jurisdiction of the

Magistrate Judge for all purposes. (Doc. 9).

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation

(“CDCR”) pursuant to a December 21, 2007 judgment of the Superior Court of California, County of

Stanislaus (the “Superior Court”). Petitioner was convicted by jury trial of premeditated attempted

murder, possession of a shank while in jail or prison, and participation in a criminal street gang.

(People v. Lopez, 2009 WL 1783504 (Cal. App. June 24, 2009)(unpublished), slip op. at p. 1). The

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Case 1:11-cv-00121-JLT Document 21 Filed 09/19/13 Page 2 of 29





jury also found true special allegations that the offenses were committed for the benefit of a criminal

street gang, that Petitioner had personally inflicted great bodily injury, and that he had personally used

a weapon, i.e., the shank. (Id.). In a bifurcated proceeding, the jury found that Petitioner had suffered

several prior “serious” or “violent” felonies that qualified as strikes under California’s “Three Strikes”

law (Cal. Pen. Code §§ 667(d) & (e)). (Id.). Petitioner was sentenced to an indeterminate term of 15

years-to-life on the attempted murder charge and determinate terms of two years on the remaining

counts. (Id.).

Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth Appellate

District (the “5th DCA”), which, in an unpublished decision issued on June 24, 2009, affirmed

Petitioner’s conviction. (Id.). On July 28, 2009, Petitioner filed a petition for review in the California

Supreme Court. (Doc. 19, Lodged Documents (“LD”) 1). On October 14, 2009, the state supreme

court denied Petitioner’s petition for review.

On January 24, 2011, Petitioner filed the instant petition. (Doc. 1). Respondent’s answer was

filed on May 2, 2011. (Doc. 18). Petitioner has not filed a Traverse. Respondent alleges that several

of Petitioner’s claims are unexhausted. That issue will be addressed in the context of those specific

arguments in which the issue has been raised.

The Court adopts the Statement of Facts in the 5th DCA’s unpublished decision1:

FACTUAL BACKGROUND

PROCEDURAL HISTORY

Armando Lopez (A.Lopez), Paul Anthony Lopez, Jr. (P. Lopez), and Albert Andrew Lucero
(Lucero) were charged with the premeditated attempted murder (count 1) of Kenneth Lindsay,
assault with a deadly weapon (count 2), possession of a shank while in jail or prison (count 3),
and participation in a criminal street gang (count 4). The information also alleged that the three
committed the offenses charged in counts 1, 2, and 3 for the benefit of a criminal street gang
within the meaning of Penal Code1 section 186.22, subdivision (b)(1), and that the three
personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly
weapon (§ 12022, subd. (b)) in the commission of the offenses charged. The information also
alleged that A. Lopez had served a prior prison term and that Lucero had suffered two prior
serious felony convictions and had served a prior prison term. The prosecutor ultimately


1 The 5th DCA’s summary of the facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1).
Thus, the Court adopts the factual recitations set forth by the 5th DCA.

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Case 1:11-cv-00121-JLT Document 21 Filed 09/19/13 Page 3 of 29



decided not to seek the personal-use enhancement against P. Lopez and Lucero. A fourth man,
Timothy McKenzie, was charged, but was acquitted by the jury.

Following trial, the jury found all three defendants guilty on counts 1, 3, and 4, but acquitted
them of assault with a deadly weapon. The jury found true the allegation that the offenses were
committed for the benefit of a criminal street gang and that the three defendants had each
personally inflicted great bodily injury. The jury also found that A. Lopez had personally used
a weapon (the shank). In a bifurcated proceeding, the trial court found true the allegations
concerning the prior prison terms and prior serious felony convictions.

Lucero was sentenced to an indeterminate term of 30 years to life on count 1 and a consecutive
determinate term of eight years on the remaining counts. P. Lopez was sentenced to an
indeterminate term of 15 years to life on count 1 and a consecutive determinate term of two
years on the remaining counts. A. Lopez was sentenced to an indeterminate term of 15 years to
life on count 1 and a determinate term of two years on the remaining counts.

FACTUAL SUMMARY

All three defendants were inmates at Stanislaus County Jail and all were validated members of
the Norteño gang. Lindsay, McKenzie, and the three defendants were housed together with
other documented members of the Norteño gang in a 12-man cell. On October 19, 2006, the
inmates were removed from their cell for cell maintenance. Four of the inmates, including
Lindsay, temporarily were placed together in a holding cell. While in the cell, Lindsay found
three balloons of heroin. Lindsay gave one balloon to a cellmate and secreted two of the
balloons on his person. Later, Lindsay informed A. Lopez and P. Lopez about the heroin.
Heroin is a valuable commodity in jail. Generally, gang members are required to share with
other gang members any drugs that are found, not for consumption, but for use in gaining
power and control within the jail. Lindsay kept his two balloons instead of passing them on to
gang leaders. He began to barter the heroin for commodity items, which violates the gang's
code of conduct. Inmates who engage in this behavior face punishment and “removal” by other
gang members. Fatal removals involve the use of weapons.

Later that evening, after Lindsay took his shower, he was invited to join in a game of cards.
Seated at the table were the three defendants and McKenzie. While sitting at the table, Lindsay
was hit from behind in the chest. He turned and saw A. Lopez. P. Lopez came to Lindsay's
side. At first, Lindsay believed P. Lopez was coming to his aid, but instead P. Lopez punched
Lindsay in the face and was grinning. Lindsay was hit from the other side but was not sure who
hit him. He tried to grab hold of McKenzie but was unable to stay up. Lindsay fell to the floor.
His assailants then kicked and hit him numerous times. Lindsay yelled “man down” in an
attempt to summon deputies. P. Lopez told him to “shut up” and “close [his] eyes,” a reference
Lindsay understood as meaning to die. Lucero kicked him from behind. Lindsay could not say
how many times he was kicked or hit or who inflicted what blows. He did not see McKenzie
hit or kick him. Lindsay did not see any weapons. After A. Lopez hit him in the chest, Lindsay
pushed A. Lopez off of him and A. Lopez scooted to the right and was gone.

Lindsay lost consciousness. As a result of the attack, Lindsay suffered wounds to the back of
his head requiring stitches; a number of scratches, including one across his neck; a slice and

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scrape across his nipple; and a small puncture-like wound on his chest that did not require
stitches. There was no mention of the puncture wound or stabbing in the medical reports.

When the deputies arrived at the cell, Lindsay was down and nonresponsive. There was blood
on the floor and blood scattered about the cell. None of the inmates in the cell claimed to have
seen what happened. The deputies segregated the inmates who had visible signs of trauma. P.
Lopez, A. Lopez, and one other inmate were found to have redness, swelling, or cuts on their
hands. A. Lopez was wearing a T-shirt that had a sleeve torn off, and blood was found on his
boxer shorts. P. Lopez's boxers also had blood on them. There were no marks found on
Lucero's hands. After the assault, the heroin was gone.

The next morning, Deputy Teso, a gang specialist officer, came to investigate the attack. When
interviewing an inmate, Teso asked him to lift his trouser legs. When the inmate complied,
Teso found a “huila” or written memo. The huila was addressed to “Manos” and signed by
“Soldier.” It detailed the assault on Lindsay and named those who participated in the attack and
provided the motive for the attack-Lindsay's failure to follow the gang's code of conduct.

Detective Navarro interviewed Lindsay the day after the assault. Lindsay did not identify any
of his attackers. Later, Lindsay said he did not do so out of fear. In March 2007, Lindsay ran
into A. Lopez during a court date. A. Lopez asked Lindsay if he was going to testify and told
Lindsay he was lucky to be alive. Lindsay took this as a threat. After this encounter, Lindsay
negotiated a deal with the prosecution and identified his attackers.



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(Lopez, supra, slip op. at pp. 1-2).

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I.

Jurisdiction

DISCUSSION

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to

the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the

United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.

7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States

Constitution. The challenged conviction arises out of the Stanislaus County Superior Court, which is

located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment.

Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v.

Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other

grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after

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statute’s enactment). The instant petition was filed after the enactment of the AEDPA and is therefore

governed by its provisions.

II.

Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he

can show that the state court’s adjudication of his 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); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

A state court decision is “contrary to” clearly established federal law “if it applies a rule that

contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set of facts

that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.”

Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-406. A state court

decision involves an “unreasonable application” of clearly established federal law “if the state court

applies [the Supreme Court’s precedents] to the facts in an objectively unreasonable manner.” Id.,

quoting Williams, 529 U.S. at 409-410; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam).

Consequently, a federal court may not grant habeas relief simply because the state court’s

decision is incorrect or erroneous; the state court’s decision must also be objectively unreasonable.

Wiggins v. Smith, 539 U.S. 510, 511 (2003) (citing Williams, 529 U.S. at 409). In Harrington v.

Richter, 562 U.S. ___ , 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an “unreasonable

application” of federal law is an objective test that turns on “whether it is possible that fairminded

jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. If

fairminded jurists could so disagree, habeas relief is precluded. Richter, 131 S.Ct. at 786. As the

United States Supreme Court has noted, AEDPA’s standard of “contrary to, or involv[ing] an

unreasonable application of, clearly established Federal law” is “difficult to meet,” because the purpose

of AEDPA is to ensure that federal habeas relief functions as a “‘guard against extreme malfunctions in

the state criminal justice systems,’” and not as a means of error correction. Richter, 131 S.Ct. at 786,

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quoting Jackson v. Virginia, 443 U.S. 307, 332, 99 S.Ct. 2781, n. 5 (1979)(Stevens, J., concurring in

judgment). The Supreme Court has “said time and again that ‘an unreasonable application of federal

law is different from an incorrect application of federal law.’” Cullen v. Pinholster, 131 S.Ct. 1388,

1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “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 of fairminded disagreement.” Richter, 131 S.Ct. at 787-788.

Moreover, federal “review under § 2254(d)(1) is limited to the record that was before the state

court that adjudicated the claim on the merits.” Cullen, 131 S.Ct. at 1398 (“This backward-looking

language requires an examination of the state-court decision at the time it was made. It follows that

the record under review is limited to the record in existence at the same time–i.e., the record before the

state court.”)

The second prong of federal habeas review involves the “unreasonable determination” clause of

28 U.S.C. § 2254(d)(2). This prong pertains to state court decisions based on factual findings. Davis v.

Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a

federal court may grant habeas relief if a state court’s adjudication of the petitioner’s claims “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.” Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114

F.3d at 1500 (when reviewing a state court’s factual determinations, a “responsible, thoughtful answer

reached after a full opportunity to litigate is adequate to support the judgment”). A state court’s factual

finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable

jurists.” Id. ; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v.

Taylor, 543 U.S. 1038 (2004).

The AEDPA also requires that considerable deference be given to a state court’s factual

findings. “Factual determinations by state courts are presumed correct absent clear and convincing

evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and

based on a factual determination will not be overturned on factual grounds unless objectively

unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2).” Miller-

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El v. Cockrell, 537 U.S. at 340. Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of

historical or pure fact, not mixed questions of fact and law. See Lambert v. Blodgett, 393 F.3d 943,

976-077 (2004).

To determine whether habeas relief is available under § 2254(d), the federal court looks to the

last reasoned state court decision as the basis of the state court’s decision. See Ylst v. Nunnemaker,

501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state

court decided the petitioner’s claims on the merits but provided no reasoning for its decision, the

federal habeas court conducts “an independent review of the record...to determine whether the state

court [was objectively unreasonable] in its application of controlling federal law.” Delgado v. Lewis,

223 F.3d 976, 982 (9th Cir. 2002); see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

“[A]lthough we independently review the record, we still defer to the state court’s ultimate decisions.”

Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). Where the state court denied the petitioner’s

claims on procedural grounds or did not decide such claims on the merits, the deferential standard of

the AEDPA do not apply and the federal court must review the petitioner’s ’s claims de novo. Pirtle v.

Morgan, 313 F.3d at 1167.

The prejudicial impact of any constitutional error is assessed by asking whether the error had

“a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120

(2007)(holding t the Brecht standard applies whether or not the state court recognized the error and

reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner

demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic,

466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by the AEDPA alleges

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland

prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht

standard. Avila v. Galaza, 297 F.3d 911, 918 n. 7 (9th Cir. 2002); Musladin v. Lamarque, 555 F.3d

830, 835 (9th Cir. 2009).

III. Review of Petitioner’s Claims.



The instant petition itself alleges the following as grounds for relief:

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Case 1:11-cv-00121-JLT Document 21 Filed 09/19/13 Page 8 of 29





I. Admission Of The “Huila” Without Proper Authentication Violated Due Process And
California Evidence Code § 352.

II. Insufficient Evidence Was Presented To Support The Great Bodily Injury Enhancement.

III. The Trial Court Failed To Properly Instruct The Jury Regarding The Great Bodily Injury
Enhancement.

IV. Petitioner’s Right To A Fair Trial Was Impinged By The Coaching Of A Prosecution
Witness.

V. Petitioner’s Right To A Fair Trial Was Impinged Because Prospective Jurors Did Not Take
An Oath To Be Truthful.

VI. Petitioner’s Right To A Fair Trial Was Impinged By The Failure To Poll Jurors.


I. Admission Of The “Huila” Without Proper Authentication Violated Due Process.



Petitioner first makes several arguments related to the admission of the “huila” that

incriminated Petitioner in the beating of the victim. Petitioner’s claims lack merit.



A. The 5th DCA’s Opinion.









The 5th DCA rejected Petitioner’s claim as follows:

I. Admission of the “huila ”

The defendants raise a number of issues related to the admission of the huila found the day
after the assault. It was written to “Manos” and signed by “Soldier.” Deputy Teso testified that
“Manos” referred to Lucero, who was also known as “Lil Man,” and that A. Lopez was
“Soldier.” Navarro testified that Lucero was known by two monikers, “Lil Man” and “Manos.”
Lindsay said that A. Lopez was the gang member referred to as “Soldier.” The huila
documented that the attempted “removal” of Lindsay occurred on October 19, 2006. It
explained that the removal was for “degenerate acts, use of drugs, heroin, promoting it, and
spreading negativity amongst our people.” It also charged Lindsay with numerous prior
violations of the gang code. The author noted that he had “assisted” in the removal, and that he
had arrived at the jail on “Thursday, 10-12-06, from DVI, Tracy.” After explaining the details
of the acts leading to the removal, the author stated, “I was the hitter. After I hit [Lindsay] a
few times, in the chest area, I went for the neck. I then noticed my piece broke, and I flushed it.
[Lindsay] called ‘man down,’ and then the K9's arrived.”

Both Lindsay and Teso testified that huilas are used to communicate within the gang and are
carried by designated couriers from place to place. Huilas are written on very small pieces of
paper to avoid detection, and writing a huila is a skill learned by gang members.

Obviously a damaging piece of evidence, the admission of the huila was litigated heavily at
trial. On appeal, the defendants raise [the following] related issues: (1) was the huila properly
authenticated; [and] (2) was it properly admitted under Evidence Code section 352…..

A. Authentication

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Evidence Code section 1401 requires that a document be authenticated before it is admitted
into evidence. The defendants claim that the trial court erred when it admitted the huila after
finding that it had been authenticated pursuant to Evidence Code section 1421. This section
provides that a writing may be authenticated by evidence that the writing refers to or states
matters unlikely to be known by anyone other than the claimed author. The trial court found
that only A. Lopez would have known the exact date of his arrival at the Stanislaus County
Jail. The defendants claim this finding cannot withstand scrutiny because Lindsay also
remembered the date of A. Lopez's arrival, many months later, and that there were 11 men in
the cell who would have known the details of the assault.

On appeal, a trial court's decision to admit or exclude evidence is reviewed for an abuse of
discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717-718; People v. Williams (1997) 16
Cal.4th 153, 197.) We find error only where the trial court's decision exceeds the bounds of
reason. (People v. Funes (1994) 23 Cal.App .4th 1506, 1519.) In addition, we review the trial
court's ruling, not its reasoning. (People v. Mason (1991) 52 Cal.3d 909, 944.)

There are innumerable ways in which a document may be authenticated. (People v. Olguin
(1994) 31 Cal.App.4th 1355, 1372; People v. Gibson (2001) 90 Cal.App.4th 371, 383;
McAllister v. George (1977) 73 Cal.App.3d 258, 263.) Evidence Code section 1410 provides
that, “[n]othing in this article shall be construed to limit the means by which a writing may be
authenticated or proved.” “Circumstantial evidence, content and location are all valid means of
authentication. [Citations.]” (People v. Gibson, supra, at p. 383; see also People v. Olguin,
supra, at p. 1372 [both content and location identified papers as work of defendant].) Here, the
huila was found on one of the cellmates the day after the assault. It described the assault in
detail and is consistent with the evidence at trial. There was evidence that huilas are used to
communicate with gang members in other locations in the jail and outside the jail about gang
activity. Teso testified that, because Lindsay was a gang member with some status, the attack
had to be justified to gang leaders. The manner of the writing, small print on a small piece of
paper, is consistent with the description of huilas given by Lindsay and Teso. The huila was
signed by “Soldier,” a moniker for A. Lopez. In combination, there is ample circumstantial and
direct evidence that the huila is what the prosecution purports it to be: a gang communiqué,
written by A. Lopez, reporting the assault on Lindsay. (See People v. Olguin, supra, 31
Cal.App.4th at p. 1372 [lyrics handwritten on yellow paper properly authenticated as being
written by defendant where they refer to author by defendant's gang moniker or by nickname
easily derived from defendant's proper name, include references to Southside gang
membership, and could be interpreted as referring to disk-jockeying, a part-time employment
of defendant].)

The other objections to the contents of the huila go to its weight, not to admissibility. There
was a reference to “Lil Man” in the body of the huila, which might suggest the “Manos” the
huila was addressed to was not Lucero. It seems improbable, however, that A. Lopez would
write a huila to Lucero telling him that he (Lucero) participated in the assault. Or, if the
purpose of the huila was not to inform, but to memorialize, it also is improbable that A. Lopez
would use two different monikers to refer to the same person. The record is clear that Lucero is
usually referred to as “Lil Man.” The jurors, however, did not see or hear this reference, and
any question they might have had about why A. Lopez was writing to Lucero was resolved
against Lucero.

B. Evidence Code section 352

The defendants also contend that the evidence was improperly admitted under Evidence Code
section 352 because it was highly prejudicial. Again, the applicable standard of review is for an
abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 49-50.) “Evidence Code section

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Case 1:11-cv-00121-JLT Document 21 Filed 09/19/13 Page 10 of 29





352 is designed for situations in which evidence of little evidentiary impact evokes an
emotional bias. [Citation.]” (People v. Olguin, supra, 31 Cal.App.4th at p. 1369.)

We see no error in admitting the huila because it was highly relevant and not likely to invoke a
purely emotional bias. The huila establishes A. Lopez's culpability and is proof of gang
motivation. It also establishes evidence of possession of a shank. Highly relevant evidence,
even though prejudicial to the defense, is not the type of evidence that Evidence Code section
352 was intended to exclude. (People v. Zapien (1993) 4 Cal.4th 929, 958 [statute not intended
to prevent prejudice or damage to defense that naturally flows from relevant, highly probative
evidence].)



(Lopez, supra, slip. op. at pp. 3-4).





B. Analysis.

Respondent correctly argues that Petitioner's claim is meritless as Petitioner fails to allege a

violation of clearly established Supreme Court precedent in support of his claim.


Under AEDPA, even clearly erroneous admissions of evidence that render a trial
fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden
by “clearly established Federal law,” as laid out by the Supreme Court. 28 U.S.C. § 2254(d). In
cases where the Supreme Court has not adequately addressed a claim, this court cannot use its
own precedent to find a state court ruling unreasonable. (Carey v. Musladin, 549 U.S. 70, 77,
127 S.Ct. 649, 166 L.Ed.2d 482 (2006)).

The Supreme Court has made very few rulings regarding the admission of evidence as a
violation of due process. Although the Court has been clear that a writ should be issued when
constitutional errors have rendered the trial fundamentally unfair, (see Williams v. Taylor, 529
U.S. 362, 375, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)), it has not yet made a clear ruling that
admission of irrelevant or overtly prejudicial evidence constitutes a due process violation
sufficient to warrant issuance of the writ. Absent such “clearly established Federal law,” we
cannot conclude that the state court's ruling was an “unreasonable application.” (Carey v.
Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006)). Under the strict standards
of AEDPA, we are therefore without power to issue the writ on the basis of [Petitioner's]
additional claims.


Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir.2009).

In this case, Petitioner fails to allege the violation of any clearly established Supreme Court

authority for the admission of improperly authenticated evidence in violation of his federal

constitutional rights. Therefore, the claim must be rejected. See 28 U.S.C. § 2254(d).

Moreover, to the extent that the issue is presented as a violation of the State of California’s

authentication rules, as codified in Evid. Code § 1240, it is solely a question of state law that is not

cognizable in federal habeas proceedings. Generally, issues of state law are not cognizable on federal

habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991)(“We have stated many times that ‘federal





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habeas corpus relief does not lie for errors of state law.’”), quoting Lewis v. Jeffers, 497 U.S. 764, 780

(1990); Gilmore v. Taylor, 508 U.S. 333, 348-349 (1993)(O’Connor, J., concurring)(“mere error of

state law, one that does not rise to the level of a constitutional violation, may not be corrected on

federal habeas”). "Conclusory allegations which are not supported by a statement of specific facts do

not warrant habeas relief." James v. Borg, 24 F.3d 20, 29 (9th Cir.1994). Indeed, federal courts are

bound by state court rulings on questions of state law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1399

(9th Cir.), cert. denied, 493 U.S. 942 (1989). Further, “the availability of a claim under state law does

not of itself establish that a claim was available under the United States Constitution.” Sawyer v.

Smith, 497 U.S. 227, 239 (1990), quoting, Dugger v. Adams, 489 U.S. 401, 409 (1989). Tinsley v.

Borg, 895 F.2d 520, 530 (9th Cir.1990), cert. denied, 498 U.S. 1091 (1991) (“incorrect” evidentiary

rulings are not the basis for federal habeas relief).

Finally, to the extent that Petitioner’s claim is framed solely as a violation of Cal. Evid. Code §

352, i.e., the admission of evidence whose prejudicial value outweighed its probative effect, it is,

again, not cognizable as a federal habeas claim.2 Since the issue is framed as being a violation of state

evidentiary rules, it is solely a matter of state law and, for the reasons set forth in the preceding

paragraph, is not cognizable in these habeas proceedings.





II. Insufficiency Of The Evidence.

Petitioner next contends that insufficient evidence was presented regarding the enhancement of

personal infliction of great bodily injury. Petitioner is mistaken.

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A. The 5th DCA’s Opinion.

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A. Lopez contends that there was insufficient evidence to sustain the jury's finding that he
personally inflicted great bodily injury. We disagree.

A. Lopez argues unpersuasively that, because he is specifically named as being responsible for
the slight puncture-type wound to Lindsay's chest and scratches to his neck, which do not
amount to serious bodily injury, he cannot be found to have personally inflicted great bodily
injury on a group-beating theory. (People v. Salas (1978) 77 Cal.App.3d 600, 605 [term “great
bodily injury” means significant or substantial bodily injury].) Lindsay testified that A. Lopez
started the attack by hitting Lindsay in the chest (in the area of the puncture wound) and by
coming across his neck with a cutting instrument. Although Lindsay testified that, after the


2 Respondent also correctly notes that this “version” of Petitioner’s claim was never presented to the California Supreme
Court as required by the exhaustion doctrine. (Doc. 18, p. 15). However, since the issue is not cognizable under federal
habeas law because it is framed as an issue solely of state law, the Court need not address the exhaustion issue.

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initial hits, he did not see A. Lopez, and although the huila suggests that once the shank broke,
A. Lopez flushed it, there is evidence from which the jury could conclude that A. Lopez
nonetheless played a significant part in the group beating.

Evidence that A. Lopez flushed the shank does not require a conclusion that A. Lopez
withdrew from the attack and only inflicted the injuries directly linked to the shank. Lindsay's
injuries were substantial-from the time the beating started until he was knocked unconscious.
Lindsay testified he was kicked and hit multiple times even though he was unable to identify
where each kick or hit came from. There is no need to establish what particular blow or kick
caused the injuries. (See People v. Banuelos (2003) 106 Cal.App .4th 1332, 1337 [when
defendant participates in group beating, defendant may be punished with great-bodily-injury
enhancement if his conduct could have caused great bodily injury suffered even when not
possible to determine which assailant inflicted which injuries]; People v. Corona (1989) 213
Cal.App.3d 589, 593 [even though no evidence directly ties injury suffered to any particular
blow struck by defendant, if defendant joined in delivery of blows and victim suffered great
bodily injury, personal-infliction enhancement stands].) The deputies at the scene observed
swelling and redness on A. Lopez's hands; Lindsay said he pushed A. Lopez off his chest. This
evidence supports an inference that A. Lopez participated in the group beating and his role was
not limited to wielding the shank.

As we have stated, when reviewing the sufficiency of the evidence, it does not matter that facts
and circumstances could have reasonably supported the opposite finding. (People v. Millwee
(1998) 18 Cal.4th 96, 132.) The jury is charged with making the factual calls and we will not
reverse where the jury's conclusions are supported by evidence in the record and all reasonable
inferences to be drawn from the evidence.


(Lopez, supra, slip op. at pp. 8-9).

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B. Analysis.

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The law on sufficiency of the evidence is clearly established by the United States Supreme

Court. Pursuant to the United States Supreme Court’s holding in Jackson v. Virginia, 443 U.S. 307,

the test on habeas review to determine whether a factual finding is fairly supported by the record is as

follows: “[W]hether, 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, 443 U.S. at 319; see also Lewis v. Jeffers, 497 U.S. 764, 781 (1990). Thus, only if “no

rational trier of fact” could have found proof of guilt beyond a reasonable doubt will a petitioner be

entitled to habeas relief. Jackson, 443 U.S. at 324. Sufficiency claims are judged by the elements

defined by state law. Id. at 324, n. 16.

A federal court reviewing collaterally a state court conviction does not determine whether it is

satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335,

338 (9th Cir. 1992). The federal court “determines only whether, ‘after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

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elements of the crimes beyond a reasonable doubt.’” See id., quoting Jackson, 443 U.S. at 319. Only

where no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ

be granted. See Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338.

If confronted by a record that supports conflicting inferences, a federal habeas 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. A

jury’s credibility determinations are therefore entitled to near-total deference. Bruce v. Terhune, 376

F.3d 950, 957 (9th Cir. 2004). Except in the most exceptional of circumstances, Jackson does not

permit a federal court to revisit credibility determinations. See id. at 957-958.

Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a

conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). However, mere suspicion and

speculation cannot support logical inferences. Id.; see, e.g., Juan H. v. Allen, 408 F.3d 1262, 1278-

1279 (9th Cir. 2005)(only speculation supported conviction for first degree murder under theory of

aiding and abetting).

After the enactment of the AEDPA, a federal habeas court must apply the standards of Jackson

with an additional layer of deference. Juan H., 408 F.3d at 1274. Generally, a federal habeas court

must ask whether the operative state court decision reflected an unreasonable application of Jackson

and Winship to the facts of the case. Id. at 1275.3

Moreover, in applying the AEDPA’s deferential standard of review, this Court must also

presume the correctness of the state court’s factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v.

Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616 (1986). This presumption of correctness applies to state

appellate determinations of fact as well as those of the state trial courts. Tinsley v. Borg, 895 F.2d

520, 525 (9th Cir.1990). Although the presumption of correctness does not apply to state court

determinations of legal questions or mixed questions of law and fact, the facts as found by the state

court underlying those determinations are entitled to the presumption. Sumner v. Mata, 455 U.S. 539,


3 Prior to Juan H., the Ninth Circuit had expressly left open the question of whether 28 U.S.C. § 2254(d) requires an
additional degree of deference to a state court’s resolution of sufficiency of the evidence claims. See Chein v. Shumsky,
373 F.3d 978, 983 (9th Cir. 2004); Garcia v. Carey, 395 F.3d 1099, 1102 (9th Cir. 2005).

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597, 102 S.Ct. 1198 (1981).

Recently, in Cavazos, v. Smith, __U.S. __, 132 S.Ct. 2 (2011), the Supreme Court further

explained the highly deferential standard of review in habeas proceedings, by noting that Jackson

“makes clear that it is the responsibility of the jury—not the court—to decide what conclusions
should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed
with the jury. What is more, a federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal court disagrees with the state
court. The federal court instead may do so only if the state court decision was “objectively
unreasonable.” Renico v. Lett, 559 U.S. ––––, ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678
(2010) (internal quotation marks omitted).

Because rational people can sometimes disagree, the inevitable consequence of this settled law
is that judges will sometimes encounter convictions that they believe to be mistaken, but that
they must nonetheless uphold.



Cavazos, 132 S.Ct. at 3.

“Jackson says that evidence is sufficient to support a conviction so long as ‘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.’ 443 U.S., at 319, 99
S.Ct. 2781. It also unambiguously instructs that a reviewing court “faced with a record of
historical facts that supports conflicting inferences 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., at 326, 99 S.Ct. 2781.


Cavazos, 132 S.Ct. at 6.

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evidence was presented regarding the enhancement.4 As the 5th DCA observed, Petitioner’s argument

is that, because he was found to have wielded the sharp instrument that inflicted only superficial

injuries on the victim then, ipso facto, he could not have been guilty of inflicting great bodily harm.

The flaw in this reasoning, as the 5th DCA notes, is that the evidence clearly establishes that a group

beating of the victim occurred. The evidence also indicates that Petitioner initiated the group beating

by hitting the victim in the chest, that the victim was kicked and hit multiple times, although he could

not see who was assaulting him, and that Petitioner’s hands were found to be red and swollen,

consistent with a physical assault, after the incident. Although Petitioner “flushed” his weapon when

the tip broke, that does not necessarily mean that he had withdrawn or that he took no further part in


4 California’s substantial evidence rule is identical to the federal rule announced in Jackson. In re Frederick G., 96
Cal.App.3d 353, 365-366 (1979).

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the assault. All of the evidence, taken as a whole, suggests the three assailants together participated

fully in the group beating for the benefit of their gang. Under such circumstances, sufficient evidence

was presented to find Petitioner guilty of the great bodily injury enhancement. Thus, the state court’s

adjudication of this issue was neither contrary to nor an unreasonable application of clearly established

federal law.

A. The 5th DCA’s Opinion.

III. The Trial Court Erred To Properly Instruct The Jury Regarding The Great Bodily Injury
Enhancement.



The 5th DCA rejected Petitioner’s claim as follows:

The defendants contend that the trial court erred in failing to instruct the jury sua sponte with
Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM) No. 3160
which provides:


“If you find the defendant guilty of the crime[s] charged in Count [s] ___________[,] ...
you must then decide whether ... the People have proved the additional allegation that
the defendant personally inflicted great bodily injury on [the injured person] in the
commission [or attempted commission] of that crime. [You must decide whether the
People have proved this allegation for each crime and return a separate finding for each
crime.] [¶] ... [¶]

“Great bodily injury means significant or substantial physical injury. It is an injury that
is greater than minor or moderate harm. [¶] ... [¶]

“<Group Assault>

“[If you conclude that more than one person assaulted [the injured person] and you
cannot decide which person caused which injury, you may conclude that the defendant
personally inflicted great bodily injury on [the injured person] if the People have
proved that:

“1. Two or more people, acting at the same time, assaulted [the injured person] and
inflicted great bodily injury on (him/her);

“2. The defendant personally used physical force on [the injured person] during the
group assault;

“AND

“[3A. The amount or type of physical force the defendant used on [the injured person]
was enough that it alone could have caused [the injured person] to suffer great bodily
injury(;/.) ]

“[OR]






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“[3B. The physical force that the defendant used on [the injured person] was sufficient
in combination with the force used by the others to cause [the injured person] to suffer
great bodily injury.

“The defendant must have applied substantial force to [the injured person]. If that force
could not have caused or contributed to the great bodily injury, then it was not
substantial.] [¶] ... [¶]

“The People have the burden of proving each allegation beyond a reasonable doubt. If
the People have not met this burden, you must find that the allegation has not been
proved.”


A trial court is required to instruct sua sponte on the relevant general principles of law
governing a case. This obligation includes instructions on all of the elements of an
enhancement. (People v. Clark (1997) 55 Cal.App.4th 709, 714-715.) We agree that the trial
court should have given this instruction. Even so, we conclude there is no prejudice.

When evaluating whether instructional error requires reversal, we are guided by the following
principles. First, the correctness of jury instructions is determined from the entire charge of the
court. (People v. Harrison (2005) 35 Cal.4th 208, 252; People v. Guerra (2006) 37 Cal.4th
1067, 1148-1149 [claims of instructional error evaluated in context of overall charge to jury;
jury presumed to be intelligent and capable of understanding entire charge], disapproved on
other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) Second, the absence of an
element in one instruction may be provided by another instruction. Likewise, confusion in one
instruction may be cured by a second. (People v. Burgener (1986) 41 Cal.3d 505, 539,
disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 751.) Even though the
failure to instruct on an element of an enhancement invokes federal constitutional issues,
reversal is not per se. Instead, the failure to instruct on an element is reviewed under the
Chapman standard. (People v. Mayfield (1997) 14 Cal.4th 668, 774 [when instruction omits
required definition or misdescribes an element, it is harmless only if beyond a reasonable doubt
that error did not contribute to verdict]; accord, People v. Newby (2008) 167 Cal.App.4th
1341, 1348.)

Although the court here gave no specific instruction directed at the great-bodily-injury
enhancement, the jury was told that one of the enhancements was whether the defendants had
personally inflicted great bodily injury on Lindsay. The jury was also told that the great-
bodily-injury enhancements required a general criminal intent, and that “[t]o be guilty of these
... enhancements, a person must not only commit the prohibited act, but must do so
intentionally and on purpose....” The jury was told twice that great bodily injury “means
significant or substantial physical injury,” “an injury that is greater than minor or moderate
harm.” This is the same language found in CALCRIM No. 3160.

If the jury concluded that the defendants were guilty of attempted murder, the verdict form
asked the jury to determine whether the defendants did “personally inflict great bodily injury
upon” Lindsay in violation of section 12022.7, subdivision (a). In addition, the jury was told
that, with respect to all counts charged, the prosecution bore the burden of proof, which was
identified as beyond a reasonable doubt. CALCRIM No. 3160 adds little to this charge, except
that it instructs the jury how to evaluate evidence of a group assault, which tells the jury it does
not have to link an injury to a particular defendant.

Given all of the instructions, and having concluded on proper instruction that each of the
defendants had attempted to murder Lindsay and that each had done so for the benefit of a
criminal street gang, the jury was highly unlikely to have reached a different outcome had it
been instructed pursuant to CALCRIM No. 3160. The missing components of CALCRIM No.
3160, that part which cannot be found in the full charge to the jury, is that related to group

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