FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This Final Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, pursuant to Title 28 of the United States Code, section 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.SUMMARY OF RECOMMENDATION Mario Morales ("Petitioner"), a California state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to Title 28 of the United States Code, section 2254(d), challenging his 2013 convictions for robbery and vandalism in Los Angeles County Superior Court. On habeas review, Petitioner sets forth claims of sentencing error, insufficient evidence, denial of his right to counsel of his choice, and juror misconduct. Because Petitioner's claims fail on their merits, the Court recommends the Petition be denied.
Petitioner's claims, as presented in his Petition, are as follows:
Pet. at 7-19.
A. STATE COURT PROCEEDINGS On June 8, 2012, following a jury trial in California Superior Court for the County of Los Angeles, Petitioner was convicted of four counts of second degree robbery (counts one through four), one count of vandalism (count five), one count of vandalism of religious property (count six), and one count of possession of a controlled substance (count seven). Lodg. 1 at 392-98, 409-14, 509-11.1 The Courtfurther found the following enhancements: (a) Petitioner had used a gun during the commission of counts one through four and six, and, thus, added ten years pursuant to California Penal Code section 12022.53(b); (b) Petitioner had been convicted of a prior strike offense based on a juvenile adjudication, and, thus, the sentence imposed on counts one through four was doubled pursuant to California Penal Code sections 1170.12(a)-(d) and 667(b)-(i); and (c) Petitioner had a prior prison term based on his 2004 conviction for assault, and, thus, imposed an additional year pursuant to California Penal Code section 667.5(b). CT 501-06, 509-11. Accordingly, on March 5, 2013, the trial court sentenced Petitioner to eighteen years in state prison. Id.
Petitioner appealed the judgment to the California Court of Appeal. Lodg. 2. On August 20, 2014, the California Court of Appeal affirmed in part and reversed in part Petitioner's conviction on direct appeal in a reasoned decision. Lodg. 5. The court found (1) the conviction for vandalism of religious property in count six should be modified to misdemeanor vandalism; (2) the firearm enhancement on count six was improper; and (3) the prior prison term enhancement based on Petitioner's 2004 conviction for assault was improper. Id. The judgment was affirmed in all other respects. Id.
On September 29, 2014, Petitioner filed a Petition for Review in the California Supreme Court. Lodg. 6. On November 12, 2014, the California Supreme Court summarily denied review of the appeal. Lodg. 7.
On April 14, 2015, Petitioner constructively filed2 a petition for writ of habeas corpus in the California Supreme Court. Lodg. 8. On July 8, 2015, the California Supreme Court summarily denied the petition. Lodg. 9.
On July 29, 2015 and November 3, 2015, pursuant to the mandate of the California Court of Appeal, the Los Angeles County Superior Court amended the judgment to (1) reduce Petitioner's conviction on count six to misdemeanor vandalism; (2) strike the firearm enhancement on count six; (3) reduce Petitioner's sentence on count six by one year to run concurrently with the sentence imposed on count one; and (4) strike the prior prison term enhancement. Lodgs. 10, 11. Accordingly, the court reduced Petitioner's sentence to seventeen years. Id.
B. FEDERAL COURT PROCEEDINGS On May 20, 2015, Petitioner constructively filed the instant Petition. Dkt. 1 at 3, 22. On January 21, 2016, Respondent filed an Answer contending Petitioner's claims are meritless. Dkt. 27. Petitioner did not file a Traverse. The matter thus stands submitted and ready for decision.
For a summary of the facts, this Court relies on the California Court of Appeal's reasoned decision on Petitioner's direct appeal:3
Prosecution Evidence
At approximately 7:40 p.m. on January 3, 2011, Benjamin S. and his friends Josue, Christopher, and Roberto, all minors, were walking down Westmoreland Avenue, near James M. Wood Boulevard. A car pulled up and cut them off. Benjamin was scared because they were in a bad neighborhood. Morales was in the driver's seat of the car andAlvarado was in the passenger seat. Morales asked, "Where are you from?" Benjamin knew this meant Morales wanted to know if he was from a gang, and Benjamin responded that he did not "gangbang or that I'm not from nowhere." The two men seemed mad at something. Benjamin had seen Morales before, just walking around the street, and he remembered his tattoos. Alvarado pulled out a gun and held it outside the car window, pointed down. Morales got out of the driver's seat and approached Benjamin's group looking "madder and madder." Alvarado moved into the driver's seat of the car. Morales said something like, "What do you guys got on you?" Benjamin saw his "friends . . . taking out their stuff." He did not want to surrender his property, but he was afraid, so he gave up his iPod and some earphones. His friends all gave up iPods. Josue at first tried to slip away but Morales saw him. Josue gave Morales "his stuff." Benjamin heard someone say, "Let's go, Peanut." After Morales took their belongings, he got in the passenger seat of the car. Benjamin did not want to call the police and get himself in deeper trouble. He and his friends began walking toward the bus stop. A short time later, they saw a helicopter and heard sirens.
Approximately 20 minutes after the robberies of the four youths, at approximately 8:00 p.m., Officer Nam Phan of the Los Angeles Police Department (LAPD) and his partner noticed two males standing in front of the Yangmani restaurant, located at the intersection of Olympic Boulevard and Magnolia Avenue. One of the males was spray painting graffiti on the wall of the restaurant, while the other stood on the sidewalk. The male on the sidewalk was looking from side to side and appeared to be acting as a lookout. He was tall, "bulkier" than the male who was spray painting, and wearingdark clothing. Alvarado was nearby - sitting in the driver's seat of a blue or teal Toyota Camry. The Camry's front passenger door was open. The two males standing in front of the restaurant ran when the officers approached. The male acting as the lookout ran south. The male who had been spray painting ran toward the Camry, then dropped the spray paint can and ran north.
Officer Phan saw spray-painted graffiti on a building across the street from the restaurant. It was of the same color. The graffiti on both buildings read, "M.S." and "13." The paint on the building across the street from the restaurant was still somewhat wet.
Officer Denward Chin arrived at the scene to assist Officer Phan, who had detained Alvarado. While speaking with Alvarado, Officer Phan saw the "bulkier"-sized male return. Officer Phan identified him as Morales. He was aggressive and combative with the officers. Morales yelled that the Camry belonged to him and he was going to take it. He approached the officers and continued yelling even though he was close to them. Officer Phan asked Morales to step back while they investigated. Morales became more aggressive. He clenched his fists and took a fighting stance. Officer Chin spoke to him and Morales began to calm down. Morales then refused to put his hands on his head and tried to take a swing at Officer Chin. Officer Phan and another officer took Morales to the ground and then into custody. Morales continued to challenge Officer Phan to a fight while he was in the back of Officer Chin's patrol unit.
When Benjamin heard the helicopter and police sirens, he and his friends approached the police activity. Benjamin saw that the police had detained the car the defendants were in when they took his property. Benjamin approached and asked the officers if they wouldcheck the car for his property. Benjamin identified his iPod. Benjamin also identified the defendants.
Josue approached the officers with Benjamin and appeared frightened. Josue was afraid to tell them how he knew the detained individuals. He said, "I'm scared. I just want my stuff back." Josue then pointed to the car and said it was the car used to stop him when his iPod was taken. Josue said the people the police had detained were the same people in the vehicle when his property was taken. Josue made a field identification from the back seat of a police car, and he identified Alvarado and Morales. Josue said Alvarado pointed a gun toward Josue's feet and demanded property. Josue also said that he recognized both defendants from the area. Josue told Officer Phan that he initially lied to the defendants and said he did not have anything on him, but he was afraid he would be shot or killed so he gave up his property.
Officer Phan found
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