Gonzalo Gonzalez v. Robert Horel

dissenting:

In considering an insufficient evidence claim, a reviewing court takes the proof elicited at trial in the light most favorable to upholding the jury’s verdict. Our deference is doubled in a habeas case. A federal court may not overturn a state court decision even if it is erroneous. Rather, relief under § 2254 may be granted only if the decision of the state court is more than erroneous — it must be unreasonable. That is the situation here.

The state admits that there is no direct evidence that Gonzalez carried a concealed firearm on his person. No one saw him produce a gun from his pocket or waistband, for example, nor was a gun found on him in a search. In the absence of direct evidence, the state sought to prove by circumstantial evidence that he must have had the gun concealed on him before he brandished it at the window. The sole circumstantial evidence on this critical point — indeed, the sole evidence of any type — consisted of a previous statement made by a person inside the house. He saw Gonzalez at the window with his hands empty. He then saw Gonzalez reach down below the window sill — to where we do not know; he could not see — and then come back up with…

MEMORANDUM *

Petitioner-Appellant Gonzalo E. Gonzalez appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction for carrying a concealed firearm as a participant in an active street gang in violation of California Penal Code § 12025(b)(3). His conviction on that count was stayed pursuant to California Penal Code § 654 due to his contempora *775 neous conviction for being a felon in possession of a firearm under California Penal Code § 12021(a)(1). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.

We review de novo a district court’s denial of a habeas petition. Schultz v. Tilton, 659 F.3d 941, 942 (9th Cir.2011). Our review is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Brawn v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.2007).

Gonzalez first contends that the trial court committed reversible error when it omitted the element of actual concealment from the jury instruction in violation of his Sixth and Fourteenth Amendment rights. But the record shows that, while charging the jury, the judge modified CALJIC No. 12.47.1 to omit the “capable of’ language. The judge therefore…

FILED

NOT FOR PUBLICATION JUL 24 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GONZALO EDWARD GONZALEZ, No. 12-55661

Petitioner - Appellant, D.C. No. 5:08-cv-01817-GAF-

FFM

v.

ROBERT A. HOREL, Warden, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Gary A. Feess, District Judge, Presiding

Argued and Submitted July 10, 2014 Pasadena, California

Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.

Petitioner-Appellant Gonzalo E. Gonzalez appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas petition challenging his conviction for carrying a

concealed firearm as a participant in an active street gang in violation of California

Penal Code § 12025(b)(3). His conviction on that count was stayed pursuant to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. California Penal Code § 654 due to his contemporaneous conviction for being a

felon…