Opinion
Kenneth Taylor, Petitioner, Pro se, Norco, CA.
For Warden Tampkins, Respondent: Susan S Kim, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
VICTOR B. KENTON, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
INTRODUCTION
On September 23, 2014, Kenneth Taylor (hereinafter referred to as " Petitioner"), a California state prisoner proceeding pro se, filed a " Petition for Writ of Habeas Corpus by a Person in State Custody" pursuant to 28 U.S.C. § 2254 (" Petition"). In accordance with the Court's Order requiring Respondent to file a response, on November 17, 2014, Respondent filed an " Answer to Petition for Writ of Habeas Corpus; Memorandum of Points and Authorities" and a " Notice of Lodging." Petitioner did not file a Reply.
Having reviewed the allegations of the Petition, the matters set forth in the record and the parties' filings, it is recommended that the Petition be denied and this case be dismissed with prejudice.
PROCEDURAL HISTORY
On March 12, 2012, a jury in the Los Angeles County Superior Court found Petitioner guilty of making criminal threats in violation of California Penal Code (" PC") § 422. (Lodged Document [" LD" ] 1 [Clerk's Transcript (" CT")] at 87-89; LD 2 [Reporter's Transcript (" RT") at 903-04.) Petitioner admitted allegations pertaining to three prior serious felony convictions in violation of PC § 667(a)(1) and three prior serious or violent felony convictions in violation of PC § 667(b)-(I) and PC § 1170.12(a)-(d). (CT at 104; LD 4 at 1-4.) On October 5, 2012, Petitioner was sentenced to a term of six years and four months in state prison. (CT at 184, 188-90; RT at 3008-16.)
On March 12, 2013, Petitioner filed a direct appeal in the California Court of Appeal. (LD 5.) On August 29, 2013, the California Court of Appeal issued an opinion affirming the judgment of conviction, with a modification regarding a court security fee. (LD 8.)
On October 2, 2013, Petitioner filed a Petition for Review in the California Supreme Court. (LD 9.) On November 13, 2013, the California Supreme Court denied review. (LD 10.)
STATEMENT OF FACTS
The California Court of Appeal set forth a factual background in denying Petitioner's direct appeal which this Court summarizes in pertinent part and supplements with observations from its own review of the record, as follows:
On July 6, 2008 at about 1:00 p.m., Carl White, Clyde Clausell, and Petitioner were at Lennox Park in Los Angeles County. (RT at 311.) White, Clausell, and Petitioner worked for the Department of Parks and Recreation. White, a general maintenance supervisor, was Clausell's supervisor. (Id.) Clausell was a maintenance supervisor and was Petitioner's supervisor. White and Clausell were at the park to serve notice on Petitioner that his employment was being terminated. (RT at 311-312.)
White opened the door of the park office and Clausell saw Petitioner on the phone, sitting at Clausell's desk. (RT at 313.) Only White, Clausell, and Petitioner were present. White and Clausell entered the office and Petitioner hung up the phone. Petitioner then said, " Oh, I knew this was coming." (Id.)
Clausell stood in the corner of the office. His role was simply to be a witness to the termination. (RT at 314.) After Petitioner hung up the phone, White talked with Petitioner. White took out an envelope containing paperwork and told Petitioner that his employment was being terminated. (RT at 315.)
Once White mentioned termination, Petitioner got belligerent and started yelling and screaming, saying it was all Clausell's fault. (RT at 317.) Petitioner said Clausell did not stand up for Petitioner. (Id.) Clausell testified that Petitioner continued talking and said to Clausell, " You not a man. You a bitch and you a faggot. Your wife, ... wear the pants and you ain't nothing but a punk." (Id.) Petitioner then said, " Yeah, but you getting a pass today." (Id.) Petitioner was trying to provoke Clausell. (Id.)
Petitioner was sitting in the office chair perhaps four feet from Clausell, and Clausell was standing in the doorway. (Id.) The office was very small, about eight feet by ten feet. (Id.) When Petitioner was calling Clausell a punk, bitch, and similar words, Petitioner's demeanor was like that of a mad man. (RT at 318.)
Petitioner took keys off a ring and threw them on the desk. (Id.) Clausell testified that Petitioner then took his personal keys and put them in between his hand and started lunging at him talking about " Come on, mother fucker. You want some of this? You want some of this?" (Id.) Clausell could see one key protruding from between Petitioner's index finger and his ring finger. (RT at 319.) Petitioner lunged at Clausell with the key in his hand. (Id.) When Petitioner lunged at Clausell, Petitioner's hand came within perhaps six or eight inches of Clausell. (Id.)
Clausell testified that Petitioner said, " You ain't nothing but a Mexican lover and I hope the sons of bitches chop you up into pieces." (RT at 320.) After Petitioner said that, he turned around and said, " Yeah. Next time they see you, you going to be like this in a mother fucking coffin and I don't care, I'm going to get even with all of you." (Id.) When Petitioner said that, Petitioner's wrists were crossed in front of him. (Id.) The prosecutor asked Clausell, " What did you take that statement to mean, ... the statement where the defendant showed you his wrists crossed over each other?" (RT at 321.) Clausell replied, " To me that's a death threat" because people who are deceased are placed in coffins with their hands crossed. (Id.)
The prosecutor asked Clausell if he remembered how far Petitioner was from Clausell when Petitioner made the gesture with his wrists crossed and told you he would put your hands like that in a coffin. (Id.) Clausell replied, Petitioner was about " a foot away." (Id.) Clausell felt " real terrible" at the time of the confrontation. The prosecutor asked if Clausell was scared, and Clausell replied, " Scared. I wasn't more just like scared, but I wasn't going to let no harm come to me." (Id.) Clausell thought Petitioner was able to carry out the threat against him and would " sooner or later." (Id.) Petitioner said only once that he was going to arrange Clausell's wrists in a coffin. (Id.) That was the last time Clausell saw Petitioner. (RT at 322.)
The prosecutor asked Clausell if he ever threatened Petitioner. (Id.) Clausell replied that he only asked Petitioner if he was " through now." (Id.) Clausell told Petitioner not to call Clausell's house or cell phone in the future. Clausell also indicated his attorney would be contacting Petitioner. Clausell never made physical movements towards Petitioner. (RT at 323.)
After Petitioner left, Clausell put away tools that Petitioner had left out, locked up the facility, then drove to the county police department. (Id.) Clausell went there because Petitioner had threatened his life and Petitioner had told him that he was going to hurt Clausell, his family, and whoever was around Clausell. (RT at 323.) Clausell told an officer what had happened. (Id.)
Clausell testified that the incident affected his employment. (RT at 323-24.) Clausell had to leave work for about a month because of stress and anxiety attacks, and his blood pressure went up. (Id.) The incident was debilitating and prevented him from progressing in his career. Clausell saw three psychologists and was seeing someone at time of trial. Because of the incident, Clausell had to take medications to " keep him from snapping." (Id.) Clausell also testified he was having anxiety attacks. (Id.) Clausell no longer works at the park. (RT at 325.) The department transferred him at his request because the situation was too dangerous. After Petitioner made the threat against Clausell, Clausell received phone calls at home. (Id.) A person(s) would call Clausell's home or cell phone but say nothing. (Id.) The calls stopped after Clausell spoke with a county police.) officer. (RT at 325-326.)
Los Angeles County Police Officer Gerardo Cedano testified as follows. On July 6, 2008, about 1:00 p.m. or shortly thereafter, Clausell contacted Cedano and told Cedano that Clausell had just been threatened by Petitioner. (RT at 362.) Clausell appeared to be afraid. (RT at 363.) Cedano testified Clausell told him that Petitioner had verbally threatened Clausell and it appeared Petitioner was going to hit Clausell with a set of keys. (Id.) Petitioner said that he was going to put Clausell's hands in a casket. That meant Petitioner was going to kill Clausell. (Id.) Clausell believed that Petitioner would hurt him and that Petitioner knew where Clausell lived. (Id.)
Petitioner presented no defense evidence.
PETITIONER'S CONTENTION
Petitioner contends the following:
1. Petitioner contends that no substantial evidence established that he made criminal threats. (Petition at 5.)
DISCUSSION
I
STANDARD OF REVIEW
A. AEDPA Standard
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"). See Koerner v. Grigas, 328 F.3d 1039, 1044 (9th Cir. 2003). As explained by the Supreme Court, the AEDPA " places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) (" Statutes such as AEDPA have placed more, rather than fewer, restrictions on the power of federal courts to grant writs of habeas corpus to state prisoners.").
Under the AEDPA, a federal court may not grant a 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).
Section " 2254(d)(1)'s 'contrary to' and 'unreasonable application' clauses have independent meaning." Bell v. Cone, 535 U.S. 685, 694 (2002). The Supreme Court has explained that:
[u]nder the " contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the " unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams, 529 U.S. at 412-13; see also Brown v. Payton, 544 U.S. 133, 141 (2005); Weighall v. Middle, 215 F.3d 1058, 1061 (9th Cir. 2000) (discussing Williams).
" A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). It is not necessary for the state court to cite or even to be aware of the controlling federal authorities " so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002); see also Smith v. Hedgpeth, 706 F.3d 1099, 1102 (9th Cir. 2013) (citing Early).
While Supreme Court precedent is the only authority that is controlling under the AEDPA, this Court may also look to Ninth Circuit case law as " persuasive authority" when evaluating the state court's application of federal law. Hurd v. Terhune, 619 F.3d 1080, 1084-85 (9th Cir. 2010). See also Howard v. Clark, 608 F.3d 563, 568 (9th Cir. 2010) (citation omitted).
Further, the AEDPA provides that state court findings of fact are presumed to be correct unless a petitioner rebuts that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Where a higher state court has denied a petitioner's claim without substantive comment, a federal habeas court " looks through" such a denial to the " last reasoned decision" from a lower state court to determine the rationale for the state courts' denials of the claim. See Cannedy v. Adams, 706 F.3d 1148, 1156 (9th Cir. 2013) (citing, inter alia, Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). There is a presumption that a claim that has been silently denied by a state court was " adjudicated on the merits" within the meaning of 28 U.S.C. § 2254(d), and that AEDPA's deferential standard of review applies, in the absence of any indication or state-law procedural principle to the contrary. See Johnson v. Williams, U.S., 133 S.Ct. 1088, 1094 and n.1 (February 20, 2013) (citing, inter alia, Harrington, 131 S.Ct. at 784-85 and Ylst, 501 U.S. at 806).
Here, Petitioner's claim was rejected by the California Court of Appeal in its reasoned opinion on direct appeal, followed by the California Supreme Court's denial of discretionary review. The California Court of Appeal's opinion is therefore the relevant adjudication of the claim for purposes of § 2254(d) review. See Berghuis v. Tompkins, 560 U.S. 370 (2010)(where intermediate state appellate court denied claim on merits and state supreme court then denies discretionary review, " relevant state court decision" for purposes of § 2254(d) is that of intermediate state appellate court).
B. Petitioner Is Not Entitled to Habeas Relief on His Insufficiency of the Evidence Claim .
Petitioner contends that there was insufficient evidence to support his criminal threats convictions. (See Petition at 5.)
1. Trial Court Proceedings .
On February 2, 2010, after the People rested, Petitioner moved for a judgment of acquittal pursuant to Penal Code section 1118.1. (RT at 377.) Petitioner argued that what Clausell testified Petitioner said to him was not " unequivocal, unconditional, immediate and specific as to convey a gravity of purpose and immediate prospect of execution" for purposes of Penal Code section 422. (RT at 378.) After further discussion by the court and parties, the court continued the hearing on the motion to February 3, 2010, to permit the court to consider the issue. (RT at 378-389.)
On February 3, 2010, the court held a hearing and noted that Clausell testified that Petitioner said, " Next time they see you, you're going to be like in a mother fucking coffin and I don't care. I'm going to get even with all of you." (RT at 616.) The court stated, " Those are the words indicating a threat or that you argued was a threat." (Id.) The court acknowledged it could not discount Petitioner's statement " Your hands are going to be crossed like this." (RT at 620.) After further discussion by the parties, the court denied Petitioner's motion for judgment of acquittal. (RT at 633.)
2. California Court of Appeal Opinion .
The California Court of Appeal rejected Petitioner's insufficiency of the evidence claim as follows:
" Petitioner claims the trial court erred by denying his Penal Code section 1118.1 motion and claims there was insufficient evidence to support his conviction. Since Petitioner presented no defense evidence, the applicable test is the same as to each claim, i.e., whether, based on the People's evidence, there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that Petitioner committed the charged offense. ( People v. Cole (2004) 33 Cal.4th 1158, 1212--1213.)
In People v. Toledo (2001) 26 Cal.4th 221 (" Toledo"), our Supreme Court stated, 'In order to prove a violation of [Penal Code] section 422, the prosecution must establish all of the following: (1) that the defendant " willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, " (2) that the defendant made the threat " with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out, " (3) that the threat--which may be " made verbally, in writing, or by means of an electronic communication device" --was " on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, " (4) that the threat actually caused the person threatened " to be in sustained fear for his or her own safety or for his or her immediate family's safety, " and (5) that the threatened person's fear was " reasonabl[e]" under the circumstances. [Citation.]" (Id. at pp. 227--228, italics added.)
As the court observed in the case of In re Ryan D. (2002) 100 Cal.App.4th 854, 'the statute " was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others." [Citation.] In other words, [Penal Code] section 422 does not punish such things as 'mere angry utterances or ranting soliloquies, however violent." [Citation.]" (Id. at p. 861.)
Moreover, 'the determination whether ... the words were sufficiently unequivocal, unconditional, immediate and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties' history can also be considered as one of the relevant circumstances.' ( People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) The surrounding circumstances include 'the defendant's mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant.' ( People v. Solis (2001) 90 Cal.App.4th 1002, 1013.)
Petitioner argues his 'words and mannerisms conveyed an emotional outburst in response to getting fired from his job, and did not convey a gravity of purpose and an immediate prospect of execution.' That is, Petitioner's sufficiency claim pertains only to the third enumerated element in Toledo. We reject Petitioner's claim.
Petitioner, in his opening brief, comments in passing, 'The fact that supervisor White had instructed Clausell to accompany him as a " witness" to the firing of Petitioner indicates that both White and Clausell had anticipated Petitioner's angry response. This calls into question the jury's conclusion that Clausell's fear was reasonable under the circumstances.' (See fn. 2, post.)
We have set forth the pertinent facts. They include Clausell's testimony which, fairly read, reflects that (1) Petitioner said to Clausell '.. " Next time they see you, you going to be like this in a mother fucking coffin and I don't care, I'm going to get even with all of you all" ' (italics added) and (2) when Petitioner said this, Petitioner crossed Petitioner's wrists in front of Petitioner. Clausell testified he took this to be a death threat because people who died were placed in coffins with their hands crossed.
We conclude, based on all of the evidence, that there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that Petitioner committed a violation of Penal Code section 422, including sufficient evidence that Petitioner's threat was on its face and under the circumstances in which it was made so unequivocal, unconditional, immediate, and specific as to convey to Clausell a gravity of purpose and an immediate prospect of execution of the threat. ( People v. Ochoa, supra, 6 Cal.4th at p. 1206.) None of the cases cited by Petitioner compels a contrary conclusion. This includes In re Ricky T. (2001) 87 Cal.App.4th 1132, which is distinguishable from the present case."
(LD 8 at 7-9.)
C. Applicable Federal Law .
The Fourteenth Amendment's Due Process Clause guarantees that a criminal defendant may be convicted only " upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charge." In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court announced the federal standard for determining the sufficiency of the evidence to support a conviction in Jackson v. Virginia, 443 U.S. 307 (1979). See Fiore v. White, 531 U.S. 225, 228-29 (2001)(" We have held that the Due Process Clause of the Fourteenth Amendment forbids a state convict a person of a crime without proving the elements of that crime beyond a reasonable doubt.")(citing Jackson, 443 U.S. at 316 and Winship, 397 U.S. at 364; see also Cavazos v. Smith, U.S., 132 S.Ct. 2, 4 (2011)(" A reviewing court may satisfy the jury 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."); Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005)(Jackson standard applies to federal habeas claims attacking the sufficiency of the evidence to support a state conviction); Chein v. Shumsky, 373 F.3d 978, 982-84 (9th Cir. 2004)(en banc)(same).
Under the Jackson standard, " the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original). " Put another way, the dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein, 373 F.3d at 982-83 (quoting Jackson). In applying the Jackson standard, the federal court must refer to the substantive elements of the criminal offense as defined by state law at the time that a petitioner committed the crime and was convicted, and look to state law to determine what evidence is necessary to convict on the crime charged. See Jackson, 443 U.S. at 324 n.16; Juan H., 408 F.3d at 1275; see also Hernandez v. Duncan, 395 F.App'x 380, 381-82 (9th Cir.) (unpublished) (habeas court applying Jackson standard analyzes elements of state law crime as of time petitioner committed and was convicted of offense), cert. denied, U.S., 131 S.Ct. 577 (2010).
" A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H., 408 F.3d at 1274. All evidence must be considered in the light most favorable to the prosecution. Jackson, 443 U.S. at 319. When the factual record supports conflicting inferences, the federal court must presume -- even if it does not affirmatively appear on 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; see also Wright v. West, 505 U.S. 277, 296-97 (1992) (reiterating Jackson presumptions and deference owed); Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (per curiam) (citing Jackson). Furthermore, under AEDPA, federal courts must " apply the standards of Jackson with an additional layer of deference." Juan H., 408 F.3d at 1274. This additional layer of deference obliges a petitioner to demonstrate that the state courts' adjudication entailed an unreasonable application of the Jackson standard itself; that is, the state courts' application of the Jackson standard must be " objectively unreasonable" to warrant federal habeas relief. Coleman v. Johnson, U.S.,, 132 S.Ct. 2060, 2062 (2012) (per curiam); Juan H., 408 F.3d at 1274-75.
D. Petitioner Has Failed to Sustain His Burden Under AEDPA .
Here, the California Court of Appeal reasonably rejected Petitioner's insufficiency of the evidence claim regarding his conviction for making criminal threats. The record shows that Petitioner became enraged when informed of his termination. He was " hollering and screaming" and wielded a set of keys in a menacing and aggressive fashion while repeatedly lunging at the victim while he shouted profanities at the victim and challenged him to a fight. (RT at 318-22.) Petitioner grew more agitated, and physically threatening, as he cursed at the victim and blamed the victim for Petitioner's termination. (RT at 347.) Efforts to calm him were ineffective. (RT at 348.) After telling the victim that he hoped others would " chop you up into pieces" Petitioner continued, " Yeah. The next time they see you, you going to be like this in a mother fucking coffin and I don't care, I'm going to get even with all of you all." With that, Petitioner held his arms down in front of his own body with one closed fist crossed over the other. (RT at 320.)
In doing so, Petitioner clearly indicated to the victim that Petitioner would " get even with the victim" by killing him. Petitioner's meaning was clearly understood by the victim, who believed that when a deceased person is placed into a coffin, his or wrists are crossed in front of him, as Petitioner has mimed. He believed Petitioner's statement was a death threat, and made him feel " real terrible." The victim specifically testified he believed Petitioner had the ability to carry the threat out and that he would do so, sooner or later. (RT at 321.)
The victim's sustained fear was further shown by his subsequent conduct: rushing to the police station and continuing to experience prolonged and extreme anxiety based on Petitioner's threat. (RT at 323, 352-53.) His fear was so substantial that he requested a work transfer from his longtime work place to another location, saw three psychologists and was prescribed mood altering medications. (RT at 324-25.) He had to take time off from work after the incident. He had anxiety attacks. His blood pressure went up. He was scared. (RT at 342.) Nobody had ever threatened him like that before, and he " flipped into another zone." (RT at 342.)
" Viewing the evidence in a 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. Petitioner has failed to meet his burden in overcoming the double layer of deference applied to insufficiency of the evidence challenges. See Johnson, 132 S.Ct. at 2062. Petitioner has not shown that he has met the Jackson standard, and that the state court's adjudication entailed an unreasonable application of the Jackson standard itself. See Johnson, 132 S.Ct. at 2062. Accordingly, Petitioner is not entitled to habeas relief.
RECOMMENDATION
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.