1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FREDDY CURIEL, CASE NO. CV 10-0301 DDP (AS) 12 Petitioner, ORDER ACCEPTING FINDINGS, 13 v. CONCLUSIONS AND 14 KATHLEEN ALLISON, Warden, RECOMMENDATIONS OF UNITED 15 Respondent. STATES MAGISTRATE JUDGE 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the 18 Petition, all the records herein and the attached Report and 19 Recommendation of United States Magistrate Judge. After having 20 made a de novo determination of the portions of the Report and 21 Recommendation to which Objections were directed, the Court concurs 22 with and accepts the findings and conclusions of the Magistrate 23 Judge. However, the Court addresses certain arguments raised in 24 the Objections below. 25 26 Petitioner contends that the Report and Recommendation failed 27 to conduct an appropriate analysis with regards to Petitioner’s 28 ineffective assistance claim. (Objections at 1-2). In Ground One, 1 Petitioner asserts that his trial counsel rendered ineffective 2 assistance by failing to object to the amended information, which 3 improperly included a criminal street-gang enhancement in count 1 4 (the Cisneros murder) even though the street-gang enhancement had 5 been previously dismissed by the trial court. Petitioner contends 6 that the Report and Recommendation unreasonably determined that 7 Petitioner was not prejudiced by the inclusion of the street-gang 8 enhancement. The Court does not agree. 9 10 Although the jury did not convict Petitioner of the Cisneros 11 murder, he contends that he was prejudiced with regard to the 12 Tejeda murder because the prosecutor was permitted to link the two 13 crimes as gang motivated. (Objections at 2). However, even if 14 the amended information had not included the gang enhancement to 15 count 1, the gang-related evidence would have been allowed. The 16 amended information charged Petitioner with street terrorism in 17 count 3 and alleged gang enhancements as to count 2, the Tejada 18 murder. To establish the requisite street terrorism elements and 19 gang enhancements, the prosecutor offered the expert testimony of 20 Detective Lodge. Most of the gang expert’s evidence would have 21 been admitted regardless of whether the amended information 22 included a street-gang enhancement in count 1. Further, there was 23 significant evidence supporting count 2 and its street-gang 24 enhancements. Indeed, Petitioner acknowledges that evidence was 25 introduced demonstrating that Petitioner was present at the Tejada 26 murder, made gang-related comments, admitted being a member of the 27 OTH gang, and the gang expert opined that gang members know when 28 other gang members are carrying a gun. (Objections at 2). 1 Nevertheless, Petitioner contends that “[n]one of these facts 2 establishes that [he] knew that Hernandez would draw his gun and 3 fatally shot [sic] Tejada.” (Id.). However, the gang enhancement 4 improperly included in count 1 related only to whether the murder 5 was committed to benefit OTH by promoting, furthering, or assisting 6 the criminal conduct of OTH gang members, and not whether a gang 7 member vicariously discharged a firearm causing death, which was 8 charged only in count 2. (CT 602-03, 714). In any event, as to 9 Ground Nine, the Report and Recommendation found sufficient 10 evidence to support Petitioner’s conviction of special 11 circumstances murder, a finding to which Petitioner does not 12 object. As set forth in the Report and Recommendation, there was 13 sufficient evidence for a reasonable jury to conclude that 14 Petitioner knew Hernandez had a firearm and that Petitioner 15 intended Hernandez to use the firearm in response to perceived acts 16 of disrespect by Tejada. 17 18 Petitioner also contends that the Report and Recommendation 19 erred in finding that the trial court’s improper jury instruction 20 was harmless. (Objections at 10-15). In Ground Six, Petitioner 21 asserts that although there was no evidence he aided and abetted 22 Hernandez in carrying a concealed weapon, the trial court 23 erroneously instructed the jury on the natural and probable 24 consequences theory and on constructive possession. The Court 25 disagrees. 26 27 Instructional error warrants federal habeas relief only if 28 the “instruction by itself so infected the entire trial that the 1 resulting conviction violates due process.” Waddington v. 2 Sarausad, 555 U.S. 179, 191 (2009) (citation omitted). Further, 3 “[i]t is well established that the instruction may not be judged 4 in artificial isolation, but must be considered in the context of 5 the instructions as a whole and the trial record.” Estelle v. 6 McGuire, 502 U.S. 62, 72 (1991) (citation omitted). Moreover, if 7 a constitutional error occurred, federal habeas relief remains 8 unwarranted unless the error caused prejudice, i.e., unless it had 9 a substantial and injurious effect or influence in determining the 10 jury’s verdict. Hedgpeth v. Pulido, 555 U.S. 57, 61–62 (2008) (per 11 curiam). 12 13 As set forth in the Report and Recommendation, both Petitioner 14 and Hernandez were OTH gang members in OTH territory when they 15 approached the Tejeda murder scene together, and they remained 16 together through their flight after the gang-related shooting. 17 The gang expert opined that when one gang member has a gun, the 18 other member knows about it. From this evidence, the jury could 19 reasonably conclude that Petitioner knew that Hernandez, a fellow 20 gang member, carried a concealed weapon. Nevertheless, Petitioner 21 argues that the evidence “did not prove that [he] acted in any 22 manner to assist Hernandez in carrying a concealed weapon.” (Id. 23 at 11) (citing People v. Perez, 35 Cal. 4th 1219, 1225 (2005)). 24 To the contrary, as the Report and Recommendation emphasized, the 25 evidence indicated that prior to the shooting, Petitioner yelled 26 out that they were in OTH territory and “hit-up” Tejeda. 27 28 1 Moreover, the jury was instructed that it could alternatively 2 find Petitioner guilty of murder if it determined that Petitioner 3 aided and abetted disturbing the peace. As set forth in the Report 4 and Recommendation, Petitioner and Hernandez “hit-up” Tejada and 5 others on a public street. Tejada told Petitioner and Hernandez 6 to leave because they did not live in the neighborhood. The gang 7 expert opined that telling Petitioner and Hernandez that they were 8 not in their neighborhood and that they should leave was an act of 9 disrespect and a direct challenge to their earlier hit-up. From 10 this evidence, the jury could properly conclude that Petitioner 11 knew that Hernandez was challenging Tejada to fight in a public 12 place, an act supported by Petitioner. This was sufficient 13 evidence for a rational jury to find that Petitioner aided and 14 abetted Hernandez in disturbing the peace. 15 16 Petitioner also contends that the erroneous constructive 17 possession instruction was not harmless. (Objections at 12-15). 18 Because there was no evidence Petitioner carried a firearm, the 19 California Court of Appeal acknowledged that it was error to give 20 the constructive possession instruction, but nevertheless found no 21 prejudice from the error. As the Report and Recommendation noted, 22 there was sufficient evidence for the jury to find the Tejada 23 murder was the natural and probable consequence of either 24 disturbing the peace or carrying a concealed firearm, both of which 25 Petitioner aided and abetted. Considering the instructions and 26 trial record as a whole, which the Court must do on habeas review, 27 Petitioner has not demonstrated a reasonable likelihood that the 28 trial court’s erroneous constructive possession instruction had a 1 substantial and injurious effect or influence in determining the 2 jury’s verdict. Sarausad, 555 U.S. at 191; McGuire, 502 U.S. at 3 72; Pulido, 555 U.S. at 61-62. 4 5 Petitioner argues that the trial court’s erroneous instruction 6 was compounded by the prosecutor’s closing argument, which made it 7 appear that Petitioner was culpable for carrying a concealed 8 weapon. (Objections at 12-13). However, as discussed in the 9 Report and Recommendation, the jury was instructed that 10 prosecutor’s arguments are not evidence and are to be ignored if 11 they are in conflict with the law as given by the trial judge. In 12 any event, given the sufficient evidence that Petitioner aided and 13 abetted both disturbing the peace and carrying a concealed firearm, 14 any statements by the prosecutor concerning constructive possession 15 were harmless. Pulido, 555 U.S. at 61-62. 16 17 Petitioner contends that “a conviction cannot be based on one 18 of two theories where one of the theories is legally 19 unsupportable.” (Objections at 13) (citing Perez, 35 Cal. 4th at 20 1233). Perez further elucidates, however, that “when one of the 21 theories presented to a jury is factually inadequate, such as a 22 theory that, while legally correct, has no application to the facts 23 of the case, . . . [the court] must assess the entire record, 24 including the facts and the instructions, the arguments of counsel, 25 any communications from the jury during deliberations, and the 26 entire verdict.” 35 Cal. 4th at 1233 (citation omitted). Thus, 27 in situations like Petitioner’s, the court will affirm the jury’s 28 verdict “unless a review of the entire record affirmatively 1 demonstrates a reasonable probability that the jury in fact found 2 the defendant guilty solely on the unsupported theory.” Id. 3 (citation omitted). As discussed above, there was sufficient 4 evidence for the jury to find the Tejada murder was the natural 5 and probable consequence of either disturbing the peace or carrying 6 a concealed firearm, both of which Petitioner aided and abetted. 7 8 Petitioner’s remaining objections are simply reassertions of 9 arguments made in the Petition. These arguments were addressed 10 and rejected by the Report and Recommendation and do not cause the 11 Court to reconsider its decision to accept the Magistrate Judge’s 12 conclusions and recommendations. 13 14 IT IS ORDERED that Judgment shall be entered denying and 15 dismissing the Petition with prejudice. 16 17 IT IS FURTHER ORDERED that the Clerk serve copies of this 18 Order, the Magistrate Judge’s Report and Recommendation and the 19 Judgment herein on counsel for Petitioner and counsel for 20 Defendant. 21

LET JUDGMENT BE ENTERED ACCORDINGLY.

22 23 DATED: __ September 11, 2019 , 24 ___________ _____________ 25

DEAN D. PREGERSON

26 UNITED STATES DISTRICT JUDGE 27 28