Opinion
CV 20-8389-VAP(E)
09-26-2022
LEONARD ISACC CLARK, Petitioner, v. WARREN L. MONTGOMERY, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On September 14, 2020, Petitioner, a state prisoner, filed a “Petition for Writ of Habeas Corpus; Verification; Memorandum of Points and Authorities” and an “Administrative Motion to Request Stay and Abeyance to Permit Petitioner to Exhaust Unexhausted Claims” (collectively “the Petition”). The Petition purported to allege six claims for relief. In January of 2021, Petitioner obtained a stay of these proceedings for the purpose of exhausting certain unexhausted claims alleged in the Petition (i.e., Claims 2 through 6). See ECF Dkt. Nos. 1, 10-14. However, in June of 2022, Petitioner abandoned Claims 2 through 6, such that the matter now is proceeding on Claim 1 only. See ECF Dkt. Nos. 24-25. Claim 1 alleges that there was insufficient evidence to support Petitioner's convictions. See Petition at 8, 13-23. Respondent filed an Answer on August 12, 2022. Petitioner filed a Traverse on August 26, 2022.
BACKGROUND
An Information charged Petitioner, Taylor Christian Ward (“Ward”) and Travion Kellum with: (1) first degree residential burglary of an inhabited dwelling occupied by Judy Huang in violation of California Penal Code section 459 (Count 1); (2) attempted first degree residential burglaries by attempting to enter inhabited dwellings occupied by Samantha Hui and by Blaine Ohigashi, with the intent to commit larceny and any felony, in violation of California Penal Code sections 459 and 664 (Counts 2 and 3); and (3) (as against Ward only) fleeing a pursuing peace officer's motor vehicle while driving recklessly in violation of California Vehicle Code section 2800.2 (Count 4) (Clerk's Transcript [“C.T.”], ECF Dkt. Nos. 29-3 - 29-4, pp. 256-64). The Information further alleged that, with respect to Counts 1, 2 and 3, Petitioner had suffered prior convictions that qualified as serious felonies under California Penal Code section 667(a), and also qualified as “strikes” under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (C.T. 261-64).
The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code §§ 667(b) - (i) (eff. Mar. 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero), 13 Cal.4th 497, 504-05, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996). The Information charged Petitioner under both versions (C.T. 261-63).
After a joint trial of Petitioner and Ward, a jury found Petitioner guilty of Counts 1 through 3, and found true allegations that the burglary and attempted burglaries were of the first degree (C.T. 466-68; Reporter's Transcript [“R.T.”], ECF Dkt. Nos. 29-5 - 298, pp. 2151-54). In bifurcated proceedings, Petitioner admitted that he had suffered prior strike convictions (C.T. 489-90; R.T. 2154-55, 2401-03, 2412-16). The Superior Court sentenced Petitioner to a prison term of 45 years and four months to life (C.T. 489-95; R.T. 2422-24, 2427-28).
On January 21, 2016, in Los Angeles County Superior Court Case No. SA091839, Petitioner had pleaded no contest to one count of first degree residential burglary on or about December 10, 2015, in violation of California Penal Code section 459, a strike offense, and admitted to having a prior strike conviction (C.T. 1-6, 28-58). As part of his current case, the trial court found that Petitioner violated his felony probation from Case No. SA091838 (R.T. 2157).
The California Court of Appeal affirmed the conviction, but remanded the matter for the Superior Court to exercise discretion whether or not to strike enhancements imposed under California Penal Code section 667(a)(1) (Respondent's Lodgment 2, ECF Dkt. No. 11-2; see People v. Clark, 2019 WL 1373781 (Cal.App. Mar. 27, 2019)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgments 3-4, ECF Dkt. Nos. 11-3 - 11-4).
On remand, the Superior Court resentenced Petitioner to a determinate prison term of 24 years and eight months (Respondent's Lodgment 21, ECF Dkt. No. 29-18).
Petitioner filed several state court habeas petitions raising claims not relevant to Claim 1 herein. See Respondent's Lodgments 5-8, 10-11, ECF Dkt. Nos. 11-5 - 11-8, 29-1 - 29-2.
SUMMARY OF TRIAL EVIDENCE
The Court has conducted an independent review of the record and has confirmed the accuracy of the following summary of the evidence in People v. Clark, 2019 WL 1373781 (Cal.App. Mar. 27, 2019). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision); Petition, pp. 5-8 (Petitioner adopting the California Court of Appeal's summary of the evidence).
Both Alhambra Police Officer Henry Reyes and Detective Jack Ng, testified about their extensive experience investigating residential burglaries, describing a common type of residential burglary known as “flocking.” Typically in such a case, two or three perpetrators operate together, have a getaway car, and choose a residential area near a freeway but not near major intersections. One of the
accomplices will knock on the front door of a house, usually between 9:00 a.m. and 6:00 p.m., in order to determine whether anyone is home. If not, they attempt to enter the residence through a window or back door, usually wearing gloves. If there is an answer to their knock, an excuse is given, such as looking for a particular person or to see if the car parked on the street is for sale. Operating near a freeway allows the perpetrators to enter and leave the area quickly.
Judy Huang (Huang) testified that she lived on a quiet street with little traffic, about three or four blocks from the freeway. On September 14, 2016, she left her South 8th Street house at about 8:30 a.m. to go to work. Some time that afternoon, her mother called to ask her whether she had been home, because the door was unlocked and open. Huang asked her mother to wait for her outside and called the police. When she arrived home the doors were unlocked and open, the bedrooms were a mess with piles of clothes and blankets all over the floor, drawers stood open, four back windows were broken, and a pillowcase was missing. Huang's mother testified that she left the house about 9:00 a.m., closed and locked the doors and windows, and when she returned that afternoon, the front door was unlocked and windows at the back of the house were broken.
Later at the police station, Huang identified items belonging to her, including a Louis Vuitton purse and
wallet, and a pair of shoes, with a combined value of over $2,000, as well as some items of jewelry, a jewelry box, and her mother's pink pillowcase.
Samantha Hui (Hui) lived about two miles away from Huang's residence on South Parkview Drive, Alhambra. Hui testified that on September 14, 2016, her white Honda[] was parked on the street outside her home. It was not for sale and had no sign. About 11:20 that morning, she heard a series of loud knocks on her door, looked out her second-floor window, and saw a person she had never seen before, later identified as codefendant Ward. The doorbell had a camera that was activated by ringing the doorbell, and Hui's mother and stepfather had answered the door remotely. Ward was mumbling and appeared to be hiding something in her sweater. After a few moments Ward left, and Hui watched her get into a black Toyota Camry. Hui noted the license plate and called police, suspecting that Ward had been testing to see if anyone was home.
Hui's stepfather, Eric Skjarstad, testified that when his cell phone alerted him that someone had rung the front doorbell that morning, the camera was activated and he spoke through the cell phone to a person he later identified as Ward. He testified that at first it was hard to understand Ward, and after he asked her a second time what she was wanted, Ward replied that there was a sign on the Honda or Hyundai parked outside, and she was wondering if it was for
sale. He told her he did not know, that the car belonged to his stepdaughter, and he could ask her. A video recording of the conversation was played for [the] jury.
A few minutes later, Blaine Ohigashi (Ohigashi), who lived on a quiet street about two blocks from the Hui/Skjarstad residence on West Ross Avenue, heard someone banging on his door. Initially he ignored it, but the banging continued, so he looked out the window and saw someone in a red shirt. Since he did not know the person, he did not answer the door. Seconds later, he heard a police siren.
Officer Reyes was in uniform on patrol in a marked police car when he was dispatched to a familiar area on Parkview Drive, about five blocks from an onramp to the I-10 Freeway. He had been given the license number that Hui had reported, which he located on a car parked in front of Ohigashi's house on West Ross Avenue. Officer Reyes saw a man he later identified as [Petitioner] at the door of the residence, wearing a red sweater and black pants. A person he later identified as Ward was in the driver's seat of the car. A third person was in the back seat of the car, lying down as though hiding.
Officer Reyes asked [Petitioner] to sit on the curb and was heading to speak to Ward, when he saw that [Petitioner] appeared to be using his cell phone. When he heard a
buzzing noise coming from near Ward, Officer Reyes told [Petitioner] to stop, and asked Ward to turn off the car and give him the keys. Ward said something about not being able to turn off the car or that she could not find the keys, when [Petitioner] stood up and began running eastbound. Ward drove toward [Petitioner], stopped midblock to allow [Petitioner] to enter the car on the passenger side, and then she drove on. An audio/video recording of the scene taken from the camera mounted on the patrol car was played for the jury.
Officer Reyes got into his car and gave pursuit. Ward [traveled] about 10 to 15 miles per hour in excess of the speed limit, driving recklessly and running approximately four stop signs. She entered the I-10 freeway traveling at least 65 on the 55-mile-per-hour ramp. By the time they reached the 710 freeway, Ward was traveling at 80 to 90 miles per hour. The I-10 freeway was crowded and traffic was moving at about 50 miles per hour. The 710 freeway was also crowded and Ward swerved from lane to lane. After four to five minutes on the 710 freeway, Ward exited at Third Street, collided with a guardrail on the ramp, and then collided with a mailbox and a parked car. The three occupants of Ward's car got out and ran. Officer Reyes pursued them on foot and managed to catch up with Ward. He detained and handcuffed her, returned her to his vehicle, but lost track of [Petitioner] and the other passenger.
Assisting police units set up a containment of the area, and detectives were able to locate [Petitioner] as he peered out of the brush next to the freeway sound wall about one-half mile from the Third Street exit. Officer Reyes made the identification, and then searched the car. He found a pillowcase on the rear floorboard, which contained a white Louis Vuitton purse, a jewelry box, several items of gold-colored jewelry, and some coins. Officer Reyes explained that it was a recent trend for burglars is to use a pillow case taken from the scene to hold their loot. He also found two cell phones and a radio scanner on the driver's side floorboard. He explained that a radio scanner picks up emergency broadcasts, including those from police dispatch, allowing the listener to know if the police are responding to a call and where they are. Later, another detective found clothing in the trunk, including four pairs of gloves.
(Respondent's Lodgment 2, pp. 4-7; see People v. Clark, 2019 WL 1373781, at *2-3).
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is “contrary to” clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyerg v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law ase 2:20-cv-08389-VAP-E Document 33-1 Filed 10/26/22 Page 11 of 36 Page ID #:2355 to the facts).
“In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court's application must have been ‘objectively unreasonable.'” Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). “Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 101 (2011). This is “the only question that matters under § 2254(d)(1).” Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents.” Id. “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal on direct review. See Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision); see Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
DISCUSSION
Petitioner claims that the evidence was insufficient to support his convictions for burglary and attempted burglary. See Petition, pp. 13-23 (Claim 1); Traverse, pp. 1-3. The California Court of Appeal denied this claim on direct appeal, finding that “powerful circumstantial evidence” established that Petitioner was a willful participant in the burglary and attempted burglaries (Respondent's Lodgment 2, pp. 8-12; People v. Clark, 2019 WL 1373781, at *4-6). For the reasons discussed below, Petitioner's claim does not merit federal habeas relief.
I. Standards Governing Challenges to the Sufficiency of the Evidence
On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was “so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment.” Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was “so unsupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 655 (2012).
Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). “First, a reviewing court must consider the evidence in the light most favorable to the prosecution.” Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). At this step, a court “may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial.” United States v. Nevils, 598 F.3d at 1164 (citation omitted). “Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume - even if it does not affirmatively appear in the record -that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 566 U.S. at 655 (“Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts”) (citation and internal quotations omitted); Cavazos v. Smith, 565 U.S. 1, 2 (2011) (“it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial”). The State need not rebut all reasonable interpretations of the evidence or “rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia].” United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).
At the second step, the court “must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court “may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Id. (citations and internal quotations omitted; original emphasis).
In applying these principles, the federal habeas court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense “is purely a matter of federal law.” Coleman v. Johnson, 566 U.S. at 655. The Court “must consider all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously.” McDaniel v. Brown, 558 U.S. at 131 (citation omitted). The Court must conduct an independent review of the record when a habeas petitioner challenges the sufficiency of the evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). As noted above, the Court has conducted such an independent review.
The Supreme Court has “made it clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. at 651; see also Parker v. Matthews, 567 U.S. 37, 43 (2012) (combination of AEDPA standard of review and Jackson v. Virginia standard imposes a “twice-deferential standard”). In assessing a sufficiency of evidence challenge governed by the AEDPA standard of review, a federal habeas court must apply a “double dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), cert. denied, 566 U.S. 1039 (2012).
II. Petitioner's Challenge to the Sufficiency of the Evidence to Support His Burglary and Attempted Burglary Convictions Does Not Merit Federal Habeas Relief.
Under California law, the elements of first degree burglary are: (1) a person entered into a specified structure (here, an “inhabited dwelling house”); and (2) at the time of the entry, that person had the specific intent to commit theft or any felony. See People v. Tafoya, 42 Cal.4th 147, 170-71, 64 Cal. Rptr, 3d 163, 164 P.3d 590 (2007), cert. denied, 552 U.S. 1321 (2008) (citations omitted); see also Cal. Penal Code §§ 459, 460; C.T. 455-56 (jury instructions re burglary). “[T]he gist of the offense is entry with the proscribed intent, and . . . such an entry constitutes the completed crime of burglary ‘regardless of whether . . . any felony or theft actually is committed.'” People v. Allen, 21 Cal.4th 846, 863 n.18, 89 Cal.Rptr.2d 279, 984 P.2d 486 (1999) (citation omitted; emphasis original).
“Inhabited” means “currently being used for dwelling purposes, whether occupied or not.” Cal. Penal Code § 459. Petitioner does not (and could not) dispute that the trial evidence, viewed in the light most favorable to the prosecution, established that each of the charged offenses involved an “inhabited dwelling” for purposes of finding that the burglary and attempted burglaries were of the first degree. Huang, Hui and Ohigashi each testified that they lived at the homes in question, Huang testified that her home had been broken into and items were missing that later were recovered by police (Count 1), and Hui and Ohigashi each testified that they were home at the time that Ward and Petitioner knocked on their respective front doors (Counts 2 and 3) (R.T. 1217-19, 1254-55, 1547-66).
“Attempted burglary requires two elements: (1) the specific intent to commit burglary[;] and (2) a direct but ineffectual act toward its commission.” People v. Mejia, 211 Cal.App.4th 586, 605, 149 Cal.Rptr.3d 815 (2012) (citation omitted); see also Cal. Penal Code § 21a (defining attempt). “The intent [to commit burglary] may be inferred from the circumstances.” People v. Cloninger, 165 Cal.App.2d 86, 88, 331 P.2d 441 (1958). As Petitioner's jury was instructed:
A direct step requires more than merely planning or preparing to commit First Degree Residential Burglary or obtaining or arranging for something needed to commit First Degree Residential Burglary. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit First Degree Residential Burglary. It is a direct movement towards the commission of the crime after preparations are
made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.
(C.T. 457) (emphasis original).
Petitioner argues that: (1) as to the burglary of Huang's residence (Count 1), there supposedly was no evidence Petitioner was present at the residence and no evidence that he was a direct perpetrator or an aider and abettor of that burglary; (2) as to the attempted burglary of the Hui residence (Count 2), there supposedly was no evidence Petitioner was present at the residence and no evidence that he was direct perpetrator or an aider and abettor of that attempted burglary; (3) as to the attempted burglary of the Ohigashi residence (Count 3), the evidence supposedly showed only Petitioner's presence and preparation. Petitioner acknowledges the evidence that he ran from police (see R.T. 1265-68, 1274-75, 1873) and the evidence that Huang's personal property was in the car in which Petitioner was a passenger (R.T. 1556-66, 1580-81). Nevertheless, Petitioner argues that the evidence was insufficient to support any of the three counts. See Petition, pp. 13-23; Traverse, pp. 1-3. Petitioner argues that the Court of Appeal's contrary conclusion was an unreasonable determination of the facts based on the evidence introduced at trial (Petition, p. 14).
Both burglary and attempted burglary are specific intent crimes. The jury was instructed that, to prove guilt for each of the charged counts based on a theory of aiding and abetting (as opposed to guilt as a direct perpetrator), the prosecution was required to show that Petitioner knew the perpetrator's unlawful purpose and specifically intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of the crime (C.T. 459-60 (noting, “If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.”)).
A. A Rational Jury Could Have Inferred that Petitioner was with Ward at the Huang and Hui Residences.
There may have been no direct evidence of Petitioner's presence at the Huang or Hui residences, but there was ample circumstantial evidence from which a jury rationally could infer that Petitioner was present with Ward at each such residence. As discussed below, the timeline of events is instructive.
Petitioner's cousin testified that she saw Petitioner leave her home in Alhambra in a black Toyota Camry on the morning of September 14, 2016, some time between 10:30 and 10:55 a.m. (R.T. 1822, 1824, 1826-27, 1829-32). Petitioner's cousin knew it was before 11:00 a.m. because she had an emergency and had to be out by 11:00 a.m., and she left a little before then (R.T. 1825-26).
Ward testified that she borrowed the black Toyota Camry at around 10:20 that morning and drove for approximately 30 minutes before picking up Petitioner (R.T. 1833-37, 1839, 1854). Ward claimed there was a pillowcase in the car when she first entered the car that morning (R.T. 1837-38). Ward also claimed she had stopped at Hui's house before picking up Petitioner at his cousin's house (R.T. 183940, 1843).
Huang's mother said she left her home intact and locked at 9:00 a.m. that morning, so the burglary (which involved the pillowcase) happened that morning after 9:00 a.m. (R.T. 1560, 1811).
In regard to timing, Ward's testimony conflicted with the testimony of Hui. Hui testified that she was at her home in Alhambra at around 11:20 a.m. on September 14, 2016 when Hui heard a series of loud knocks on her door and looked out to see Ward talking through a doorbell camera to Hui's stepfather (R.T. 1217, 1219, 1247, 1250; see also R.T. 1543-46 (Hui's stepfather testifying re same and jury being played the doorbell camera video)). Hui said the interaction did not seem normal, so she called the police, describing Ward's car, including the make and license plate number (black Toyota Camry, license plate 7MNJ617) (R.T. 1217-18, 1220-21).
If Hui's testimony regarding timing was correct, Ward could not have been at Hui's house before picking up Petitioner. At a minimum, it is reasonable to infer that Ward picked up Petitioner before 11:00 (as Petitioner's cousin testified) and that Ward and Petitioner arrived at Hui's residence around 11:20.
Furthermore, consistent with Hui's testimony and timeline, Officer Reyes testified that, at approximately 11:20 a.m., he responded to a dispatch to Hui's address (R.T. 1261-62). At 11:30 a.m., Officer Reyes spotted Petitioner at Ohigashi's residence, just two blocks from Hui's house (R.T. 1254-59, 1263-65, 1504-05, 1520-22, 1529, 1532, 1535, 1870-71, 1881).
From all of this evidence, a rational jury could have inferred that Petitioner was in the Toyota Camry at the time Ward knocked on Hui's door at 11:20 a.m. Similarly, a rational jury also could have inferred that Petitioner and Ward had gone to Huang's house before 11:20 a.m. (because of, inter alia, the presence in the Camry of Huang's property, which necessarily had been stolen earlier that same morning).
B. A Rational Jury Could Have Inferred that Petitioner Participated in the Burglary and the Attempted Burglaries as a Perpetrator or as an Aider and Abettor with the Requisite Intent.
Petitioner argues that the circumstantial evidence of his flight from police and the presence of Huang's stolen property in the Camry were at most evidence of possession of stolen property. Petitioner argues that this evidence, even with the evidence that Petitioner knocked on Ohigashi's door, was insufficient to support his convictions on any of the three counts (Petition at 14-20; Traverse at 1-3).
The jury was instructed that it could consider evidence of flight, which may show consciousness of guilt, but that flight by itself could not prove guilt (C.T. 452). The jury was also instructed that possession of recently stolen property, by itself, could not prove guilt:
If you conclude that a defendant knew he or she possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of First Degree Residential Burglary as charged in Count 1 based on those facts alone. However, if you also find that supporting evidence tends to prove his or her guilt, then you may conclude that the evidence is sufficient to prove he or she committed the First Degree Residential Burglary charged in Count 1.
The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his or her guilt of First Degree Residential Burglary charged in Count 1.
Remember that you may not convict a defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
See C.T. 454 (jury instruction) (emphasis added); see also People v. Grimes, 1 Cal. 5th 698, 730-31, 207 Cal.Rptr.3d 1, 378 P.3d 320 (2016) (“Jurors [may] infer guilt of burglary . . . from the possession of stolen property plus some corroborating evidence. . . . ‘[P]ossession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.'”) (citations omitted)).
The jury also was instructed regarding how it may consider circumstantial evidence:
[B]efore you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must only accept reasonable conclusions and reject any that are unreasonable.
(C.T. 438; see also C.T. 439 (similar instruction re circumstantial evidence and intent or mental state, indicating that intent may be proved by circumstantial evidence)).
The jury is presumed to have followed the trial court's instructions. See Weeks v. Angelone, 528 U.S. 225, 234 (2000).
The Court of Appeal found that the evidence at Petitioner's trial went beyond mere possession of recently stolen property and mere flight from police:
[T]he evidence showed two of the three incidents closely resembled the method known as “flocking,” which typically includes two or three perpetrators with a getaway car, operating near a freeway but away from busy intersections, where one of the accomplices would knock at a residence door during working hours in order to find an unoccupied home. If no answer, the burglars would then enter through a back window or door, usually wearing gloves; if the knock was answered, the accomplice would then make some excuse for his/her presence. Consistent with the descriptions of the method given by both Detective Ng and Officer Reyes, all three incidents took place in a quiet neighborhood, not far from a freeway entrance, after 9:00 a.m. and before residents would be expected home from work. Ward was seen at the door of one residence, [Petitioner] was seen knocking at the door of another residence. Ward drove the same car on both occasions, giving rise to a reasonable inference that they were working together. When Ward's call at the Hui residence resulted in an answer, she gave one of the typical excuses: looking to see if the car parked on the street is for sale. Although there was no evidence of a knock at the unoccupied Huang residence, the windows at the back of the house were broken, and the front door was unlocked, suggesting that the burglars broke into the rear of the house and left through the front door. ¶ Most telling was the presence of the goods taken from the Huang
home found in the getaway car.
(Respondent's Lodgment 2, pp. 9-10; People v. Clark, 2019 WL 1373781, at *5 (Cal.App. Mar. 27, 2019)). The Court of Appeal continued:
Ward was waiting in the driver's seat with the car running while [Petitioner] knocked on a stranger's door just two blocks from the house where Ward had done the same thing 10 minutes earlier, on the same morning that the nearby Huang residence was burglarized. When interrupted by Officer Reyes, [Petitioner] fled with Ward in the apparent getaway car. It is reasonable to infer that [Petitioner] and Ward committed the Huang burglary together and that [Petitioner] knew the items they took were in the car. The evidence thus showed more than mere presence and access.
. . . [P]owerful circumstantial evidence [established] that [Petitioner] was not an innocent bystander in an earlier burglary committed by others, but was a willful participant in the previous crime. . . . [Petitioner's] flight was evidence of consciousness of guilt and constituted an implied admission (see People v. Williams, [56 Cal.4th 630, 679, 156 Cal.Rptr.3d 214, 299 P.3d 1185 (2013), cert. denied, 571 U.S. 1197 (2014) (evidence of flight after crimes supports an inference of consciousness of guilt and constitutes an implied admission))], particularly since [Petitioner] fled not once, but a second time after the collision, and then hid in bushes next to the freeway, until
found by the police.
(Respondent's Lodgment 2, pp. 11-12; People v. Clark, 2019 WL 1373781, at *5-6 (internal quotation marks omitted)).
The Court of Appeal's decision was not unreasonable. It was reasonable to decide that a rational jury could have found Petitioner's participation in the Huang burglary. Items stolen from the Huang house after 9:00 a.m. that morning were recovered from the Toyota Camry following the police chase (R.T. 1556-66, 1817-18). Petitioner admittedly was present in the car with the stolen goods (both before and after Petitioner fled from Officer Reyes) (R.T. 1875, 1877). Petitioner and his companion(s) also had a radio scanner (a tool used to check for police radio traffic and the presence of law enforcement) tuned to the Alhambra Police Department frequency, and four pairs of gloves (typically used by burglars to avoid leaving fingerprints behind) (R.T. 1275-78, 1514-15, 1579-85, 1588-89). This evidence, together with the other evidence of record, sufficed to find that Petitioner participated either directly or as an aider and abettor in the Huang burglary. See People v. Barnum, 147 Cal.App.2d 803, 805, 305 P.2d 986 (1957) (“The identification of the perpetrator of an offense may be established entirely by [circumstantial] evidence.”).
The People can use circumstantial evidence to prove that a defendant participated in a burglary. [citations]. Prosecution witnesses do not need to actually see the defendant break and enter into the premises. [citation].
An unexplained flight is evidence of participation in a burglary. [citation]. Furthermore, in showing that a defendant entered the premises with felonious intent, the People can rely upon reasonable inferences drawn ‘from all the facts and circumstances disclosed by the evidence,' since felonious intent is rarely proven through direct evidence. [citations]. . . . [E]vidence of flight from the scene of a burglary supports a reasonable inference that an intent to commit theft was existent. [citation].
In re Anthony M., 116 Cal.App.3d 491, 500-01, 172 Cal.Rptr. 153 (1981); see also People v. Naughton, 270 Cal.App.2d 1, 7-8, 75 Cal.Rptr. 451 (1969) (“The crime of burglary is a crime of stealth and is often proved by circumstantial evidence.”) (citations omitted).
Further, a rational jury could have concluded that Petitioner and his companion(s) were engaging in flocking, having completed the Huang burglary, and having attempted to burglarize the Hui and Ohigashi residences. Officer Reyes testified that it was typical for a flocking burglar to knock to see if anyone is home before attempting entry, and that such burglaries usually involve two to three subjects and a getaway car; if someone is home, the burglars move on to a new location, and, if there is no response to a knock, the burglars then look for entry into the home (R.T. 1267, 1528-29, 1533-34; see also R.T. 1576-78 (Officer Ng testifying concerning burglaries he had seen in Alhambra involving flocking, noting that if someone is home the person knocking will make up an excuse like asking if a car randomly parked on the street is for sale)). Flocking had been a trend in Alhambra for the previous two years (R.T. 1528). The burglaries were happening close to freeway onramps to increase the likelihood of getting away (R.T. 1532-33, 1577). Officer Reyes had investigated several burglaries, and most of the time the suspects would run if confronted (R.T. 1531, 1534-35). Officer Reyes also had been seeing a trend where burglars use pillowcases to carry items stolen so that, if they are caught prior to stealing, they have nothing overtly incriminating on them (R.T. 1277, 1578).
Consistent with Officer Reyes' testimony and Detective Ng's testimony, the specific evidence adduced in this case demonstrated flocking: (1) the incidents all occurred in Alhambra within a short time frame and within close proximity to one another and to a freeway (i.e., Hui's house was five blocks from the freeway (R.T. 1217, 1262), Ohigashi's house was two blocks from Hui's house (R.T. 1254, 1263, 1529, 1535), and Huang's house was approximately two miles from Hui's home and four blocks from a freeway (R.T. 1547, 1566, 1585-86)); (2) items stolen from Huang's home that morning were recovered from Ward's car (R.T. 1275-77, 1556-66, 1580-85), along with four sets of gloves and a radio scanner tuned to the Alhambra Police Department frequency (R.T. 1277-78, 1516-18, 1526, 1579-80, 1581, 1587); (3) Ward borrowed the car, picked up Petitioner and drove to situs of the three incidents, where Ward eventually knocked on Hui's front door and Petitioner eventually knocked on Ohigashi's front door (R.T. 1838-44, 1853-57); (4) Officer Reyes responded to a dispatch identifying Ward's car and identifying Ward as a suspicious person or possible burglar (R.T. 1262-67); (5) when Officer Reyes located Ward and Petitioner at Ohigashi's home and asked Ward to turn off her car and give him the keys, Ward did not comply, Petitioner ran away before reentering Ward's car, and then Ward and Petitioner led Officer Reyes on a lengthy chase until Ward crashed the car (R.T. 1268-74, 1512-13); and (6) after Ward crashed the car, Petitioner, Ward and a third person in the car all ran away (R.T. 1274).
Viewing the evidence in the light most favorable to the verdict, the evidence was sufficient to support all three counts. Compare People v. Weddington, 246 Cal.App.4th 468, 474-80, 200 Cal.Rptr.3d 799 (2016) (upholding conviction for attempted burglary from defendants' acts of driving through neighborhoods with burglary tools in their car and knocking on doors, then fleeing from police when spotted, where the defendants were also seen burglarizing one of the houses approached; the fact that the defendants traveled from Los Angeles to the San Fernando Valley and drove through targeted neighborhoods, parking in front of residences for several minutes, knocking on doors to houses, and peering over into back yards was not the behavior of an innocent visitor to a neighborhood, and the acts were the implementation of a plan to burglarize rather than mere preparation); People v. Zaun, 245 Cal.App.4th 1171, 1172-75, 200 Cal.Rptr.3d 71 (2016), review denied (July 13, 2016) (where defendant and his companions committed three burglaries by knocking on doors to determine whether homes were occupied and then forcing entry if no one responded, evidence supported attempted burglary convictions where defendant and his companions drove away when homeowners answered the door knocks; jury could reasonably conclude that defendant and his companions had the intent to enter the homes and commit theft when they went to the front door and only abandoned that intent when someone answered the door, despite defense argument that intent to enter was never formed because of the presence of someone in each of the homes).
“[M]uch ink has been spilt in an attempt to arrive at a satisfactory standard for telling where preparation ends and attempt begins.” See People v. Superior Court (Decker), 41 Cal.4th 1, 8, 58 Cal.Rptr.3d 421, 157 P.3d 1017 (2007) (citation omitted). “Although a definitive test has proved elusive, we have long recognized that ‘[w]henever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.'” (Id.) (citations omitted). Here, the evidence of borrowing a car, driving to a neighborhood that had been targeted for burglaries during hours when residents normally would be at work, taking a police scanner and gloves, and then approaching houses and knocking on the front door suggests that the acts leading up to knocking on Hui's and Ohigashi's doors went beyond mere preparation. The knocks themselves were at least “slight acts” in furtherance of the crime, and put the plan to burglarize in motion -- a plan that would have been completed if the attempt had not been interrupted by someone being home at Hui's house and by Officer Reyes arriving at Ohigashi's house. See C.T. 457; compare Bogarin v. Hatton, 2019 WL 2088840, at *7 (S.D. Cal. May 13, 2019), adopted, 2020 WL 3411168 (S.D. Cal. June 22, 2020), appeal filed, No. 21-55693 (9th Cir. June 30, 2021) (finding sufficient evidence to support attempted burglary conviction; holding defendant's attempt to ascertain whether anyone was home was a direct but ineffectual act toward the commission of the burglary); People v. Weddington, 246 Cal.App.4th at 477-80; People v. Zaun, 245 Cal. App. 4th at 1172-75.
Although Petitioner points to allegedly conflicting evidence and other possible inferences, this Court must presume that the jury resolved evidentiary conflicts in favor of the prosecution - the Court can neither reweigh the evidence or determine issues of credibility resolved by the jury. See Cavazos v. Smith, 565 U.S. 1, 2, 7-8 (2011) (jury entitled to credit prosecution witnesses' testimony despite conflicting testimony by defense witnesses); McDaniel v. Brown, 558 U.S. 120, 131-34 (2010) (ruling that the lower federal court erroneously relied on inconsistencies in trial testimony to deem evidence legally insufficient; the reviewing federal court must presume that the trier of fact resolved all inconsistencies in favor of the prosecution, and must defer to that resolution); Bruce v. Terhune, 376 F.3d 950, 958 (9th Cir. 2004) (federal habeas court cannot revisit the jury's resolution of inconsistencies between the victim's testimony and the testimony of other witnesses); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a court does not “question a jury's assessment of witnesses' credibility” but rather presumes that the jury resolved conflicting inferences in favor of the prosecution).
Ward and Petitioner testified in their defense that their purpose in knocking on Hui's and Ohigashi's doors was to inquire into cars allegedly for sale (R.T. 1839-40, 1843, 185657, 1862, 1870-71, 1877-81; see also C.T. 418 (transcript of Ward's inquiry about the Honda through the doorbell camera at Hui's home)). Petitioner said neither he nor Ward had a car at the time, and they were trying to get one in order to be independent (R.T. 1872). Other evidence persuasively undercut the “car shopping” defense: (1) Petitioner admitted there were no cars present around Ohigashi's home other than the car Ward was driving (R.T. 1884-85), and Hui testified that the Honda in front of Hui's home did not have a “for sale” sign (see R.T. 1243-44); (2) when Officer Reyes approached Ward in front of Ohigashi's home, Officer Reyes asked Ward what she was doing there and she said, “Going to see my friend” who lived “down the street,” and Ward then said nothing seeking to buy a car (C.T. 415); (3) in a recorded call from jail, Petitioner was asked “What did they charge you for?” and answered, “I had ran from the police -really, that is what it was, but it was receiving stolen property in the car, so I ain't get back in that motherfucking car. What the fuck? I was like getting in the car. . . .” (C.T. 421-22; see also R.T. 1890-93 (playing recording for the jury)); (4) while Petitioner testified that he went to Alhambra to buy a car because he did not have one, he also said in the jail call, “I never used my car. My car is - uh - ” (C.T. 422); (5) Detective Ng testified that, when he interviewed Ward after she waived her Miranda rights, Ward said “I don't remember” when he asked why she was in Alhambra; again Ward did not mention anything about supposedly being there to buy a car (R.T. 190102).
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence was not contrary to, or an objectively unreasonable application of, any clearly established federal law as determined by the Supreme Court of the United States, or an unreasonable determination of the facts in light of the evidence presented at trial. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that judgment be entered denying and dismissing the Petition with prejudice.
Petitioner's request for an evidentiary hearing (see Petition, p. 9) is denied. Federal habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present for the first time in federal court. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (“if a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before the state court,” even where the state court denied the petition summarily) (footnote omitted); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert. denied, 573 U.S. 919 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as section 2254(d)(1) claims). In any event, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to Petitioner's claim.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment shall be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and on counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.