1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

JESUS GUILLERMO MARTINEZ, ) NO. CV 19-9810-KS

11 Petitioner, ) 12 ) v. MEMORANDUM OPINION AND ORDER ) 13 ) 14 NEIL McDOWELL, Warden, ) ) 15 Respondent. ) 16 _________________________________ ) 17 18 INTRODUCTION 19 20 On November 15, 2019, Petitioner, a California state prisoner proceeding pro se, filed a 21 Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. 22 (Dkt. No. 1.) The parties have consented to the jurisdiction of the undersigned Magistrate 23 Judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 2, 14.) On April 17, 2020, Respondent filed 24 an Answer to the Petition and lodged the relevant state court records. (Dkt. Nos. 12-13.) On 25 May 18, 2020, Petitioner filed a Reply. (Dkt. No. 16.) Briefing in this action is now complete, 26 and the matter is under submission to the Court for decision. 27 // 28 1 PRIOR PROCEEDINGS 2 3 On December 8, 2017, a Los Angeles County Superior Court jury found Petitioner guilty 4 of two counts of child abuse likely to produce great bodily injury (California Penal Code 5 (“Penal Code”) § 273a(a)); one count of vandalism (Penal Code § 594(a)); one count of 6 resisting, delaying, or obstructing a peace officer (Penal Code § 148(a)(1)); and one count of 7 being under the influence of a controlled substance (California Health and Safety Code 8 § 11550(a)). (Clerks’ Transcript (“CT”) 53-57; 3 Reporter’s Transcript (“RT”) 949-51.) On 9 January 2, 2018, the trial court found true the prosecutor’s allegations that Petitioner had two 10 prior strike convictions under the Three Strikes Law (Penal Code §§ 667(b)-(j), 1170.12(b)). 11 (CT 122; 3 RT 1205-06.) The trial court sentenced Petitioner to 14 years and 8 months in state 12 prison. (CT 122-25, 144-45; 3 RT 1212.) 13 14 Petitioner appealed the judgment of conviction. (Lodgment (“Lodg.”) No. 3.) On 15 January 23, 2019, the California Court of Appeal issued a reasoned, unpublished opinion in 16 which it affirmed the judgment. (Lodg. No. 6.) Petitioner filed a Petition for Review in the 17 California Supreme Court. (Lodg. No. 7.) On April 24, 2019, the California Supreme Court 18 summarily denied the Petition for Review. (Lodg. No. 8.) 19 20 SUMMARY OF THE EVIDENCE AT TRIAL 21 22 The following factual summary from the California Court of Appeal’s unpublished 23 decision on direct review is provided as background. See also 28 U.S.C. § 2254(e)(1) (“[A] 24 determination of a factual issue made by a State court shall be presumed to be correct” unless 25 rebutted by the petitioner by clear and convincing evidence). 26 /// 27 /// 28 /// 1 I. Prosecution Evidence 2 3 Maria Martinez (no relation to [Petitioner]) testified that she was driving in 4 the area of Palmdale Boulevard and 10th Street East in Palmdale around 8:00 p.m. 5 on July 28, 2017. While she was at the “busy intersection,” a man standing on the 6 corner about 24 feet away caught her attention. She identified the man in court as 7 [Petitioner]. Martinez testified that [Petitioner] looked “uneasy,” “appeared to be 8 under the influence of something,” and was pacing back and forth while moving 9 his hands in front of his chest and talking to himself. 10 11 Martinez saw two children, a boy and a girl, standing across the street from 12 [Petitioner], near another man. The children appeared to be around five to seven 13 years old. When the light turned green, the man near the children crossed the 14 street without them. [Petitioner] then crossed the street toward the children, who 15 followed him as he continued down the street. Martinez called the sheriff’s 16 department because something about the situation “didn’t look right” to her. 17 “[B]ased on how [[Petitioner]] appeared,” Martinez “wasn’t sure if it was safe for 18 the children to follow . . . somebody that might be under the influence of 19 something or if the children should be with him or not.” 20 21 Deputy sheriff Melvin Aquino testified that he responded to Martinez’s call. 22 When he arrived at the area of Palmdale Boulevard and 9th Street East, he saw 23 someone matching the description Martinez had provided. Aquino identified that 24 person in court as [Petitioner]. Aquino stopped his car near [Petitioner] and 25 approached him on foot. Aquino noticed an odor of alcohol emanating from 26 [Petitioner]. [Petitioner] was “aggressive” and did not want to talk. [Petitioner] 27 walked away with two small children, who were crying. 28 1 As Aquino tried to explain to [Petitioner] why he was there, [Petitioner] told 2 the children not to talk to the police and “pulled the children away by their arm 3 [sic ] and crossed the street. There was no crosswalk or lights.” Aquino testified 4 that the four-or six-lane street was busy, since it was rush hour, and “cars had to 5 stop to not run him over.” Two or three cars came within “[a] couple feet” of 6 [Petitioner] and the children, and had to stop “abruptly,” as they were traveling at 7 the “average speed limit” in excess of 25 miles per hour; there was no stop sign 8 or light where [Petitioner] crossed the street. Aquino lost sight of [Petitioner] and 9 the children after they crossed the street. On cross-examination, Aquino testified 10 that at the time, he did not believe [Petitioner] had committed a crime and did not 11 write a report of the encounter. 12 13 Approximately two hours later, at 10:40 p.m., Deputy Sheriff Cesar 14 Vilanova and his partner, Deputy Jonsen, were on patrol in the area of Palmdale 15 Boulevard and 10th Place East. Vilanova saw [Petitioner] walking north on 10th 16 Place East. [Petitioner] had two small children who looked about five years old 17 with him. Vilanova thought it was “kind of bizarre that there were two small 18 children walking at that time of night,” especially since they were “a little bit of a 19 distance behind [Petitioner],” and “he wasn’t holding them by their hands or 20 anything.” Vilanova decided to approach [Petitioner] to investigate. 21 22 As Vilanova drove the patrol vehicle toward [Petitioner], [Petitioner] 23 “began running northbound” and “[l]eft the kids behind.” The children attempted 24 to catch up, but were about 40 feet behind [Petitioner]. Vilanova followed 25 [Petitioner] and caught up to him after about 50 to 60 feet; the children were still 26 trailing behind. Vilanova exited his car “and began talking to him trying to figure 27 out what was going on, why he was running, . . . whose children [they were].” 28 The children caught up to [Petitioner] while Vilanova was talking to him. 1 [Petitioner] told Vilanova that the children were his but was unable to state 2 where he lived. Vilanova testified, “I don’t know if he was unfamiliar with that 3 area or he didn’t live in the area, but he would point in different directions as to 4 where he lived, was never really able to tell me a street, an address; or if, in fact, 5 he lived in Palmdale.” While he was talking with [Petitioner], Vilanova observed 6 several signs that led him to conclude [Petitioner] “most likely” was under the 7 influence of a central nervous system stimulant. [Petitioner] spoke very rapidly 8 but “wasn’t able to carry a conversation.” He was “constantly clenching his jaw” 9 and “would flail his body,” and his pupils did not constrict in response to 10 Vilanova’s flashlight. [Petitioner] also smelled of alcohol, though he did not 11 exhibit any other signs of alcohol intoxication. 12 13 Vilanova talked to the children during the encounter. He learned that the 14 boy was six and the girl was five. Vilanova observed that the boy “appeared to 15 be weathered like out in the sun all day”; Vilanova observed redness in the whites 16 of his eyes and around the bridge of his nose. “The little girl, same thing.” 17 Vilanova further noted that the girl “appeared she had been crying all day.” Both 18 children were dirty and told Vilanova they were hungry. At some point during 19 Vilanova’s conversation with the children, [Petitioner] yelled at them to run away 20 and go home; the children began crying. 21 22 Three women came out of a nearby apartment building. Two of them, 23 Shanita and Carol, said they recognized the children and brought out some food 24 for them. The children ate the food quickly. They told Vilanova that [Petitioner] 25 was their father and that they lived with him. Neither child knew where they lived, 26 or where they were going that evening. They said they were “just out running 27 around.” Vilanova noticed that the boy had a “small abrasion” about two inches 28 long on his wrist. The boy told Vilanova he had sustained the wound earlier in 1 the day as he jumped over a fence while running away from the police. The boy 2 said the fence was taller than Vilanova, who estimated the fence to be about seven 3 feet high. Vilanova made arrangements for the children to be transported to the 4 Palmdale sheriff’s station and transported [Petitioner] to the jail. 5 6 II. Defense Evidence 7 8 [Petitioner] testified as the sole defense witness. He acknowledged that he 9 had a criminal record and was on probation on July 28, 2017. On that day, he was 10 out with his six-year-old son and five-year-old daughter. He was their custodial 11 parent and had enrolled them in school earlier in the day. He was feeling “great” 12 and “proud,” because he “was taking care of business as best I can.” The family 13 lived in a two-bedroom apartment, and [Petitioner] provided the children with 14 food and clean clothing that day. [Petitioner] loved his children and was “very, 15 very careful” with them. He did not believe he did anything to endanger them. 16 17 [Petitioner] waited until the evening to take the children outside because it 18 was very hot during the daytime. They were going to visit his acquaintances, 19 Carol and Shanita, whom he expected to give them a ride home. [Petitioner] had 20 not been drinking that day and was not under the influence of any illegal drugs or 21 prescription medicine. 22 23 [Petitioner] first encountered sheriff’s deputies when he was in an 24 “alleyway” near Carol and Shanita’s apartment building; he did not recall having 25 an encounter with a deputy earlier that day and denied that he and the children 26 previously ran away from a deputy. [Petitioner] explained that Martinez had 27 misidentified him earlier in the day: “When the lady said that there was a guy 28 pacing back and forth, that was an acquaintance. . . . He was just there across the 1 street. I was with my children. I remember him coming across the street to help 2 me with my children to cross the street. So that was not even me, the person that 3 was pacing supposedly back and forth when Ms. Martinez supposedly made a 4 call.” 5 6 When [Petitioner] was near Carol and Shanita’s building, he saw a vehicle 7 with no lights on approaching the wrong way down the one-way alley. 8 [Petitioner] did not know how to react, so he ran. Because he taught his children 9 “military” and “boy scout stuff,” and often played “racing” with them, they 10 “automatically” ran when he said to run. He never told his children not to talk to 11 or run from police; their mother taught them that. 12 13 [Petitioner], who had had previous “unpleasant experiences” with law 14 enforcement, was “confused” when the deputies approached him. They told him 15 they were responding to a 911 call and asked him why he was running and putting 16 his children in danger. They also told him they were going to take his children, 17 while they were in earshot. 18 19 On cross-examination, [Petitioner] admitted that he was not permitted to 20 drink alcohol or use drugs while on probation. [Petitioner] denied suffering a 21 conviction for attempted robbery, but ultimately stipulated to committing that and 22 two other felony offenses. 23 24 (Lodg. No. 6 at 3-8.) 25 26 PETITIONER’S HABEAS CLAIM 27 28 Petitioner presents the following ground for habeas relief in his Petition: 1 “Insufficient evidence for felony child endangerment, in violation of the 5th and 14th 2 Amendments.” (Dkt. No. 1 at 5.)1 3 4 STANDARD OF REVIEW 5 6 I. The Antiterrorism And Effective Death Penalty Act 7 8 Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death 9 Penalty Act of 1996 (“AEDPA”), a state prisoner whose claim has been “adjudicated on the 10 merits” cannot obtain federal habeas relief unless that adjudication: (1) resulted in a decision 11 that was contrary to, or involved an unreasonable application of, clearly established Federal 12 law, as determined by the Supreme Court of the United States; or (2) resulted in a decision 13 that was based on an unreasonable determination of the facts in light of the evidence presented 14 in the State court proceeding. 15 16 For the purposes of Section 2254(d), “clearly established Federal law” refers to the 17 Supreme Court holdings in existence at the time of the state court decision in issue. Cullen v. 18 Pinholster, 563 U.S. 170, 182 (2011); see also Kernan v. Cuero, __ U.S. __, 138 S. Ct. 4, 9 19 (2017) (per curiam) (“[C]ircuit precedent does not constitute clearly established federal 20 law . . . [n]or, of course, do state-court decisions, treatises, or law review articles[.]”) (internal 21 quotation marks and citations omitted). A Supreme Court precedent is not clearly established 22 law under § 2254(d)(1) unless it “squarely addresses the issue” in the case before the state 23 court or establishes a legal principle that “clearly extends” to the case before the state court. 24 25 1 In his Reply, Petitioner raises an additional claim challenging the trial court’s decision to impose consecutive, rather than concurrent, sentence terms. (Dkt. No. 16 at 7, 8-11.) Because Petitioner raised this claim for the first time in 26 the Reply, he did not properly raise it here. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (“A Traverse is not the proper pleading to raise additional grounds for relief.”). In any event, the claim is not cognizable on federal 27 habeas review. See id. (“The decision whether to impose sentences concurrently or consecutively is a matter of state criminal procedure and is not within the purview of federal habeas corpus.”). Thus, habeas relief is not warranted for this 28 claim. 1 Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009); see also Harrington v. Richter, 562 U.S. 2 86, 101 (2011) (holding that it “is not an unreasonable application of clearly established 3 Federal law for a state court to decline to apply a specific legal rule that has not been squarely 4 established by” the Supreme Court) (citation omitted). 5 6 A state court decision is “contrary to” clearly established federal law under § 2254(d)(1) 7 only if there is “a direct and irreconcilable conflict,” which occurs when the state court either 8 (1) arrived at a conclusion opposite to the one reached by the Supreme Court on a question of 9 law or (2) confronted a set of facts materially indistinguishable from a relevant Supreme Court 10 decision but reached an opposite result. Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014) 11 (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is an 12 “unreasonable application” of clearly established federal law under Section 2254(d)(1) if the 13 state court’s application of Supreme Court precedent was “objectively unreasonable, not 14 merely wrong.” White v. Woodall, 572 U.S. 415, 419 (2014). The petitioner must establish 15 that “there [can] be no ‘fairminded disagreement’” that the clearly established rule at issue 16 applies to the facts of the case. See id. at 1706-07 (internal citation omitted). Finally, a state 17 court’s decision is based on an unreasonable determination of the facts within the meaning of 18 28 U.S.C. § 2254(d)(2) when the federal court is “convinced that an appellate panel, applying 19 the normal standards of appellate review, could not reasonably conclude that the finding is 20 supported by the record before the state court.” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir.) 21 (internal quotation marks omitted), cert. denied, 574 U.S. 1041 (2014). So long as 22 “‘[r]easonable minds reviewing the record might disagree,’” the state court’s determination of 23 the facts is not unreasonable. See Brumfield v. Cain, 576 U.S. 305, 2277 (2015). 24 25 AEDPA thus “erects a formidable barrier to federal habeas relief for prisoners whose 26 claims have been adjudicated in state court.” White v. Wheeler, __ U.S. __, 136 S. Ct. 456, 27 460 (2015) (per curiam) (internal quotation marks and citation omitted). Petitioner carries the 28 burden of proof. See Pinholster, 563 U.S. at 181. 1 II. The State Court Decision On Petitioner’s Claim Is Entitled To AEDPA Deference. 2 3 Petitioner raised his claim on direct review in the California Court of Appeal. (Lodg. 4 No. 3 at 22-32.) The California Court of Appeal denied the claim in a reasoned decision on 5 the merits. (Lodg. No. 6 at 8-14.) Petitioner then presented the claim to the California 6 Supreme Court in the Petition for Review (Lodg. No. 7 at 11-20), which the California 7 Supreme Court denied summarily without comment or citation to authority (Lodg. No. 8). 8 Thus, § 2254(d) applies, and the Court looks through the California Supreme Court’s summary 9 denial to the last reasoned decision – the decision of the California Court of Appeal on direct 10 review – to determine whether the state court’s adjudication of Petitioner’s claim is 11 unreasonable or contrary to clearly established federal law. See Johnson v. Williams, 568 U.S. 12 289, 297 n.1 (2013) (“Consistent with our decision in Ylst v. Nunnemaker, 501 U.S. 797, 806 13 (1991), the Ninth Circuit ‘look[ed] through’ the California Supreme Court’s summary denial 14 of [the petitioner’s] petition for review and examined the California Court of Appeal’s 15 opinion.”); see alsoJones v. Harrington, 829 F.3d 1128, 1136 (9th Cir. 2016) (looking through 16 California Supreme Court’s summary denial of a petition for review to the California Court of 17 Appeal’s decision on direct review). 18 19 DISCUSSION 20 21 A. Legal Standard. 22 23 “[T]he Due Process Clause protects the accused against conviction except upon proof 24 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 25 charged.” In re Winship, 397 U.S. 358, 364 (1970). When a habeas petitioner challenges the 26 sufficiency of the evidence supporting the jury’s verdict, “the relevant question is whether, 27 after viewing the evidence in the light most favorable to the prosecution, any rational trier of 28 fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson 1 v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Coleman v. Johnson, 2 566 U.S. 650, 656 (2012) (per curiam) (“question under Jackson is whether [the jury’s] finding 3 was so insupportable as to fall below the threshold of bare rationality.”). Jackson does not 4 require that the prosecutor affirmatively “‘rule out every hypothesis except that of guilt.’” 5 Wright v. West, 505 U.S. 277, 296 (1992) (citation omitted). Further, “‘[c]ircumstantial 6 evidence and inferences drawn from it may be sufficient to sustain a conviction.’” Walters v. 7 Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted). When the factual record 8 supports conflicting inferences, the federal court must presume, even if it does not 9 affirmatively appear on the record, that the trier of fact resolved any such conflicts in favor of 10 the prosecution and defer to that resolution. Jackson, 443 U.S. at 326; McDaniel v. Brown, 11 558 U.S. 120, 133 (2010). Ultimately, for Petitioner’s claim to be successful, the jury’s finding 12 must be “so insupportable as to fall below the threshold of bare rationality.” Coleman, 566 13 U.S. at 656. 14 15 When, as here, both Jacksonand AEDPA apply to the same claim, the claim is reviewed 16 under a “twice-deferential standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012) (per 17 curiam). Accordingly, this Court’s inquiry is limited to whether the California courts’ 18 rejection of Petitioner’s insufficiency of the evidence claims was an objectively unreasonable 19 application of Jackson. See Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011); Juan H. 20 v. Allen, 408 F.3d 1262, 1275 n.13 (9th Cir. 2005). 21 22 B. California Law On Child Endangerment. 23 24 “The Jackson standard ‘must be applied with explicit reference to the substantive 25 elements of the criminal offense as defined by state law.’” Boyer v. Belleque, 659 F.3d 957, 26 964 (9th Cir. 2011) (quoting Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004)). In its 27 reasoned decision, the California Court of Appeal set out the substantive standard for the crime 28 of child abuse likely to produce great bodily injury (i.e., child endangerment): 1 Section 273a, subdivision (a) provides: “Any person who, under 2 circumstances or conditions likely to produce great bodily harm or death, willfully 3 causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain 4 or mental suffering, or having the care or custody of any child, willfully causes or 5 permits the person or health of that child to be injured, or willfully causes or 6 permits that child to be placed in a situation where his or her person or health is 7 endangered, shall be punished by imprisonment in a county jail not exceeding one 8 year, or in the state prison for two, four, or six years.” 9 10 The statute is intended to protect children from abusive situations in which 11 the probability of serious injury is great. (People v. Valdez (2002) 27 Cal.4th 778, 12 784 (Valdez ).) It prohibits both active conduct, such as directly assaulting a child, 13 and passive conduct, such as endangering a child through extreme neglect. (Ibid.) 14 “‘The number and kind of situations where a child’s life or health may be 15 imperiled are infinite. . . . Thus, reasonably construed, the statute condemn[s] the 16 intentional placing of a child, or permitting him or her to be placed, in a situation 17 in which serious physical danger or health hazard to the child is reasonably 18 foreseeable.’ [Citation.]” (People v. Hansen (1997) 59 Cal.App.4th 473, 479.) 19 The child need not actually suffer great bodily injury for the statute to be violated. 20 (Valdez, supra, 27 Cal.4th at p. 784.) 21 22 (Lodg. No. 6 at 9-10.) 23 24 Petitioner specifically claimed, here and in the state courts, that the evidence was 25 insufficient in two respects: it failed to show that he exposed his children to circumstances 26 likely to produce great bodily harm or death, and it failed to show that he acted with criminal 27 negligence. (Dkt. No. 1 at 5; Lodg. No. 3 at 23-32.) The California Court of Appeal set out 28 the substantive standards for the two requirements: 1 The trier of fact determines whether the circumstances or conditions of the 2 incident are such that great bodily injury is likely. (People v. Clark (2011) 201 3 Cal.App.4th 235, 245.) “[C]ircumstances and conditions a reasonable jury could 4 consider include, but are not limited to, (1) the characteristics of the victim and 5 the defendant, (2) the characteristics of the location where the abuse took place, 6 (3) the potential response or resistance by the victim to the abuse, (4) any injuries 7 actually inflicted, (5) any pain sustained by the victim, and (6) the nature and 8 amount of force used by the defendant.” (Ibid., fn. omitted.) The term “likely” 9 as used in section 273a, subdivision (a) “means a substantial danger, i.e., a serious 10 and well-founded risk.” (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.) 11 12 “[C]riminal negligence is the appropriate standard when the act is 13 intrinsically lawful, such as leaving an infant with a babysitter, but warrants 14 criminal liability because the surrounding circumstances present a high risk of 15 serious injury.” (Valdez, supra, 27 Cal.4th at p. 789.) Criminal negligence is 16 aggravated, culpable, gross or reckless conduct that so departs from that of the 17 ordinarily prudent or careful person under the same circumstances as to be 18 incompatible with a proper regard for human life. (Id. at p. 783.) A defendant 19 may be found criminally negligent when a reasonable person in his or her position 20 would have been aware of the risk involved; he or she need not have a subjective 21 awareness of the risk. (See id. at pp. 783, 790.) 22 23 (Lodg. No. 6 at 10-11.) 24 // 25 // 26 // 27 // 28 // 1 C. Analysis. 2 3 1. Circumstances Like to Produce Great Bodily Harm or Death. 4 5 The California Court of Appeal first rejected Petitioner’s contention that he did not 6 expose his children to circumstances like to produce great bodily harm or death: 7 8 [Petitioner] emphasizes that he held his children’s arms as he crossed the 9 busy street, that the cars on the street were able to stop without hitting them, and 10 that Aquino did not believe a criminal offense had occurred at the time. These 11 contentions are not persuasive. 12 13 Taken in the light most favorable to the verdict, the evidence showed that 14 [Petitioner], while under the influence of an unknown substance or substances, 15 grabbed his small children and crossed a busy street at dusk. Multiple cars stopped 16 short to avoid the trio, who were not in a crosswalk or near a stop sign. The fact 17 that the cars were able to stop is not relevant; traffic moving quickly through an 18 area without a crosswalk or stop sign poses an objectively serious risk of 19 substantial danger to pedestrians. A reasonable jury could have concluded that 20 the children’s small statures made them even less visible to drivers, particularly 21 when the children were not in control of their own movement or in a position to 22 exercise safety precautions. 23 24 [Petitioner] further argues that there was no evidence that the children faced 25 a likelihood of substantial injury later that night, at the time of the encounter with 26 Vilanova. We disagree. The evidence also showed that [Petitioner] allowed his 27 hungry, sun-weathered small children to trail some 40 feet behind him on a dark 28 street late at night. Even though the children did not know where they were going, 1 [Petitioner] immediately abandoned them when an unknown vehicle approached. 2 The children had to run at top speed to relocate their father, who was unable to 3 respond to basic questions and demonstrated negligible concern for their safety. 4 A reasonable jury could conclude that these circumstances also likely posed a 5 well-founded risk of great bodily injury to the children. 6 7 At bottom, [Petitioner] contends that the convictions should not be upheld 8 here because “[t]he circumstances here pale in comparison to cases where 9 appellate courts have held that the defendant placed their [sic ] children in danger 10 of great bodily injury or death.” He directs us to several cases which he accurately 11 characterizes as having “extreme facts where the children faced dire 12 circumstances.” The existence of these more severe cases does not negate the 13 dangerous nature of [Petitioner’s] conduct here. “When we decide issues of 14 sufficiency of evidence, comparison with other cases is of limited utility, since 15 each case necessarily depends on its own facts.” (People v. Thomas (1992) 2 16 Cal.4th 489, 516.) The pertinent question is whether a reasonable jury could 17 conclude [Petitioner] willfully exposed his children to circumstances likely to 18 cause them bodily harm, not whether [Petitioner’s] conduct was more or less 19 egregious than that found sufficient in other cases involving different facts and 20 circumstances. 21 22 (Lodg. No. 6 at 11-13.) 23 24 The California Court of Appeal’s rejection of this part of Petitioner’s claim was not 25 objectively unreasonable, as to either of the two incidents. As to the street-crossing incident, 26 Deputy Aquino testified that Petitioner, while smelling of alcohol (2 RT 373), pulled his small 27 children by their arms to cross a busy street at dusk without a crosswalk or lights (2 RT 375, 28 704). Deputy Aquino further testified that two or three cars stopped abruptly and came within 1 “a couple feet” of hitting Petitioner and the children. (2 RT 703-04.) A rational jury could 2 infer from the evidence that, as to this incident, Petitioner placed his children in circumstances 3 likely to produce great bodily harm or death. 4 5 Petitioner contends that Deputy Aquino played a role in the street-crossing incident: 6 while Petitioner was crossing the street with the children, Deputy Aquino allegedly called out 7 and made gestures to him, causing Petitioner to delay the crossing and then finish it against a 8 red light. (Dkt. No. 1 at 14; Dkt. No 16 at 18-19.) Petitioner’s contention, however, is contrary 9 to the testimony heard by the jury. Petitioner testified that he had no recollection or awareness 10 of Deputy Aquino. (2 RT 730, 732.) And Detective Aquino testified that Petitioner walked 11 away from him before crossing the street with the children, without a cross walk or lights. (2 12 RT 373-75.) Thus, Petitioner’s contentions about what Deputy Aquino supposedly did and 13 about how Petitioner crossed the street do not call into question the California Court of 14 Appeal’s conclusion that the evidence was sufficient for a jury to find that Petitioner placed 15 his children in circumstances likely to produce great bodily harm or death. 16 17 As to the second incident later that evening, Deputy Vilanova testified that Petitioner 18 was walking down a street at 10:40 p.m. with his young, hungry, sun-weathered small children 19 trailing behind him. (2 RT 652, 654, 666, 675.) Deputy Vilanova further testified that 20 Petitioner left the children behind, in an unfamiliar neighborhood, to run away from Deputy 21 Vilanova’s vehicle (2 RT 654) and, once caught, could not answer basic questions such as 22 where he lived (2 RT 658). A rational jury could infer from the evidence that, as to the second 23 incident, Petitioner placed his children in circumstances likely to produce great bodily harm 24 or death. 25 26 Petitioner contends that Deputy Vilanova approached Petitioner and the children “in a 27 speeding vehicle that had no headlights on.” (Dkt. No. at 15.) But the jury heard Petitioner’s 28 testimony to that effect (2 RT 735) and presumably rejected it. “The reviewing court must 1 respect the province of the jury to determine the credibility of witnesses, resolve evidentiary 2 conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved 3 all conflicts in a manner that supports the verdict.” Walters v. Maass, 45 F.3d 1355, 1358 (9th 4 Cir. 1995) (citation omitted). And even assuming that the jury believed Petitioner’s testimony 5 about how Deputy Vilanova’s vehicle approached him, it would not have prevented the jury 6 from drawing a reasonable inference that Petitioner still endangered his children, by taking 7 them to that location in the first instance and then by running away without them. 8 9 Finally, Petitioner contends that other child endangerment cases in California involved 10 “circumstances much more dire than those here” and cites examples of such cases to illustrate 11 that his conduct, in comparison, did not rise to the level of placing his children in 12 circumstances posing a risk of substantial injury or death. (Dkt. No. 16 at 14-16.) But the 13 California Court of Appeal explicitly rejected this comparison, concluding that the “existence 14 of these more severe cases does not negate the dangerous nature of [Petitioner’s] conduct 15 here.” (Lodg. No. 6 at 12-13.) Because the California Court of Appeal has spoken on the 16 issue, Petitioner’s contention that his conduct was not a crime under California law affords no 17 basis for federal habeas relief under Jackson. See Johnson v. Montgomery, 899 F.3d 1052, 18 1059 (9th Cir. 2018) (finding no Jackson violation where a federal habeas petitioner who 19 “questions whether [the] uncontested facts are legally sufficient to satisfy the requirements 20 under California law” involves “a question about what state law requires, on which the state 21 court has spoken”) (citing Estelle v. McGuire, 502 U.S. 62, 63 (1991)); see also Mullaney v. 22 Wilbur, 421 U.S. 684, 691 (1975) (“state courts are the ultimate expositors of state law”). 23 24 In sum, the evidence presented at Petitioner’s trial permitted a rational jury to conclude 25 that he exposed his children to circumstances likely to produce great bodily harm or death, 26 despite Petitioner’s contentions to the contrary. The California Court of Appeal’s rejection of 27 this part of Petitioner’s claim did not involve an unreasonable application of the Jackson 28 standard. 1 2. Criminal Negligence. 2 3 The California Court of Appeal next rejected Petitioner’s argument that there was 4 insufficient evidence that he acted with criminal negligence: 5 6 [Petitioner] contends that his conduct was not incompatible with a proper 7 regard for human life. At worst, he asserts, he made some parenting mistakes and 8 was ignorant of the potentially adverse effects of his acts. 9 10 The evidence supports the jury’s finding to the contrary. A reasonable 11 person would be aware that dragging small children across a large, busy street 12 outside of a crosswalk or near a stop sign is objectively dangerous. The danger 13 was compounded by the time of day — dusk and rush hour — as well as 14 [Petitioner’s] altered mental state and the presence of swiftly moving cars in the 15 immediate vicinity. A reasonable person similarly would be aware that leaving 16 two young children alone on a dark street late at night with an oncoming car is 17 reckless and presents a high risk of serious injury to them. 18 19 [Petitioner] again emphasizes that he held onto his children — by their arms 20 — and further asserts that there was no proof the children saw him use drugs, or 21 that his altered state itself posed harm to them. Holding one’s children by the 22 arms while crossing a street in front of moving traffic makes at best a marginal 23 reduction in the serious risk involved to the children. Likewise, even if 24 [Petitioner] ingested a central nervous system stimulant outside his children’s 25 presence, that would not shield his children from the potentially hazardous effects 26 of his resultant poor decision-making. 27 28 (Lodg. No. 6 at 13-14.) 1 The California Court of Appeal’s rejection of this part of Petitioner’s claim was not 2 objectively unreasonable. The evidence showed that Petitioner, while under the influence, 3 dragged his small children across a busy street at dusk without a crosswalk or signal. (2 RT 4 373-75, 702-04.) The evidence also showed that, later in the evening, Petitioner abandoned 5 his children on a dark, unfamiliar street while he ran away from a police car. (2 RT 654-58, 6 678.) From this evidence, a rational jury could infer that Petitioner acted with criminal 7 negligence by placing his children in circumstances presenting a high risk of serious injury. 8 9 Finally, Petitioner contends that his case demonstrated careless parenting mistakes that 10 “pale in comparison” to other child endangerment cases and was unprecedented among other 11 such cases in California. (Dkt. No. 16 at 22-24.) But, as noted, “[t]hat is a question about 12 what state law requires, on which the state court has spoken.” See Johnson, 899 F.3d at 1059. 13 Moreover, Petitioner has not cited any California caselaw holding that evidence comparable 14 to the evidence from his trial would fall short of proving criminal negligence. Indeed, as the 15 California Court of Appeal noted, under California law, the “number and kind of situations 16 where a child’s life or health may be imperiled are infinite.” (Lodg. No. 6 at 10 (quoting 17 Hansen, 59 Cal. App. 4th at 479).) Thus, Petitioner is not entitled to relief for his contention 18 that the California Court of Appeal’s adjudication of his claim was incompatible with 19 California precedent. See Johnson, 899 F.3d at 1059 n.1 (state court’s rejection of Jackson 20 claim was not objectively unreasonable, even though it involved a “slightly novel application” 21 of state law, because it was “not so discordant [with prior California precedent] as to 22 undermine the fundamental federal right to proof of every element beyond a reasonable doubt” 23 and because “[n]othing in the prior caselaw prohibited application” of the state criminal statute 24 to the facts of the case). 25 26 In sum, the evidence presented at Petitioner’s trial permitted a rational jury to conclude 27 that he acted with criminal negligence, despite his contentions to the contrary. The California 28 1 || Court of Appeal’s rejection of this part of Petitioner’s claim did not involve an unreasonable 2 || application of the Jackson standard. 3 4 ORDER 5 6 For all of the foregoing reasons, IT IS ORDERED that (1) the Petition is denied; and 7 || (2) Judgment shall be entered dismissing this action with prejudice. 8 9 || DATED: May 28, 2020 10 Ki ain L- Sasinsrn

KAREN L. STEVENSON

12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20