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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 RAYMOND DAVIS MILLER, Case No. 2:20-cv-06690-KES

12 Petitioner,

MEMORANDUM OPINION AND

13 v.

ORDER

14 MARCUS POLLARD, Warden,

15 Respondent.

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17

18 I.

19 INTRODUCTION

20 Raymond Davis Miller (“Petitioner”) filed a Petition for Writ of Habeas 21 Corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (“Pet.”), 22 challenging his 2016 conviction for multiple crimes arising out of two violent 23 confrontations with an acquaintance, David Simington, including assault with a 24 deadly weapon, criminal threats, dissuading a witness, and attempted kidnapping. 25 (Dkt. 1 at 2.1) After Respondent moved to dismiss the Petition as partially

26 1 Except for citations to the Reporter’s Transcript (“RT”) and Clerk’s 27 Transcript (“CT”), page citations refer to pagination imposed by the Court’s electronic filing system. 28 1 unexhausted (Dkt. 16), Petitioner voluntarily dismissed his two unexhausted 2 grounds (Dkt. 26). Respondent then answered the Petition (Dkt. 35) and lodged 3 relevant documents (Dkt. 18, 36). Petitioner replied. (Dkt. 38.) For the reasons 4 discussed below, Petitioner’s two remaining claims fail on the merits, and the 5 Petition should be denied. 6 II. 7 FACTUAL BACKGROUND 8 The underlying italicized facts are taken from the unpublished California Court 9 of Appeal decision on Petitioner’s first direct appeal. (Lodged Document [“LD”] 3); 10 People v. Miller, No. B282284, 2019 WL 1856420, 2019 Cal. App. Unpub. LEXIS 11 2930 (Cal. Ct. App. Apr. 25, 2019). Unless rebutted by clear and convincing 12 evidence, these facts may be presumed correct. Tilcock v. Budge, 538 F.3d 1138, 13 1141 (9th Cir. 2008); 28 U.S.C. § 2254(e)(1). 14 A. August 21, 2015: [Petitioner] Attacked Simington With A Wooden Pole, 15 Causing A Head Injury And Broken Arm 16 [Petitioner] and Simington first met in prison. Thereafter, on August 21, 17 2015, Simington was fixing his car at the lot where John Schumann kept his motor 18 home. Simington served as Schumann’s “kind of” caretaker, because Schumann 19 had a heart condition. 20 At some point while Simington was fixing his car, [Petitioner], accompanied 21 by an unidentified man, arrived at the lot and got into an argument with Simington 22 possibly over drugs. Schumann heard the commotion from inside his motor home, 23 went outside, and hollered that [Petitioner] was not supposed to be on the lot. 24 [Petitioner] struck Simington with a four-foot wooden pole on the back of his head 25 and right arm. Simington saw [Petitioner] strike his arm but not the back of his 26 head. The blows caused Simington’s head to bleed and broke his right arm. 27 Simington then attempted to move behind Schumann, at which point [Petitioner] 28 struck Schumann’s stomach with the pole and fled. 1 The paramedics and police arrived. Simington told Officer James Clark 2 about the argument and attack. Simington received treatment for his injuries at a 3 hospital. 4 [Petitioner] was arrested and charged with assault and battery. 5 After being released from the hospital, Simington testified about the 6 aforementioned events at the preliminary hearing on the assault and battery 7 charges. We observe that at the preliminary hearing, Simington testified he did not 8 see who hit his arm, but at trial, he testified he saw [Petitioner] hit his arm with a 9 wooden pole. [FN2: At trial, on redirect examination, Simington testified he was 10 mistaken when he testified at the preliminary hearing that he did not see who hit his 11 arm.] 12 About two weeks after the attack and sometime after the preliminary hearing, 13 [Petitioner]’s girlfriend, Toni, approached Simington at the gas station where he 14 was working. She asked him out for a drink and how he was feeling. Simington put 15 her off and said he would call her later, although he never did. About a week later, 16 Toni approached Simington at work again and asked him if he planned to testify 17 against [Petitioner]; Simington said no. Simington thought “something was up” 18 and observed Toni “had a certain look on her face.” Simington had no further 19 contact with Toni. 20 B. November 1, 2015: [Petitioner] Threatened To Take Simington To The 21 Desert To Kill Him And Schumann, But Lawson Intervened And Helped 22 Simington Regain Possession Of His Car Keys 23 In the early morning of November 1, 2015, at about 2:00 a.m., Simington 24 arrived home from work to his apartment building and parked his car in the back 25 alley carport. Someone came to Simington’s passenger-side window, looked into 26 the car, and walked off. Upon exiting his car, Simington saw [Petitioner] [FN3: 27 Simington believed [Petitioner] had been released on bail.] and another man, 28 different from the one who had peered into his car, moving quickly toward him. 1 Simington ran. [Petitioner] kicked Simington’s legs and tackled him, causing them 2 both to fall to the ground. Simington believed he lost his car keys when he fell and 3 that [Petitioner] or the other man2 then picked them up.3 4 [Petitioner] then picked up a 15-inch knife that had fallen on the ground. 5 [Petitioner] and the other man grabbed Simington. Simington attempted to run 6 away, but could not escape [Petitioner]’s and now the other man’s grasp. 7 [Petitioner] told Simington he was going to kill him, raised the knife, and pointed 8 the blade toward Simington while the other man continued to hold Simington. For 9 Simington, “[f]ear took over.” The other man grabbed [Petitioner]’s arm and 10 said, “not here.” 11 Simington attempted to flee again, and the other man said, “He’s not going 12 to go quietly. We’ve got to do something to him,” and “[l]et’s just knock him out 13 and take him.” [Petitioner] said no, became angry, walked away, and got on his 14 phone. [Petitioner] and the other man then walked Simington southward down the 15 alley while holding on to him. [Petitioner] told the other man to get the truck. The 16 other man walked down the alley southward, in the direction of where the truck 17 would eventually arrive. 18 [Petitioner] told Simington, “you messed up” and “[y]ou never should have 19 testified against me.” [Petitioner] also told Simington that (1) he was going to take 20 him to the desert; (2) they were going to talk Schumann into the car and take him to 21 the desert too; (3) Simington was going to dig a hole in which to bury Schumann; 22 and (4) Simington would be “going in right behind” Schumann. 23 2 Like the California Court of Appeal, the Court refers to this individual as 24 “the other man.” 25 3 Simington testified, “They had the keys to my car.” (2 RT 691.) When 26 asked how he knew that, he responded, “I guess I fell a couple times . . . . When I 27 went back to the . . . after all that happened at the end I couldn’t find my keys.” (Id.) 28 1 Simington convinced [Petitioner] to allow him to go to his apartment 2 ostensibly to say goodbye to his son. Actually, although Simington had two sons, 3 they were not then at his apartment, and he created this ploy to attempt to seek 4 refuge in his apartment where his two roommates, Lawson and Eddie Peterson, 5 would be. Eventually, [Petitioner] and Simington went to Simington’s apartment 6 as [Petitioner] continued to hold Simington “under the arm with his hand.” 7 Simington believed [Petitioner] still had the knife. Simington knocked on the 8 apartment door and Lawson opened it. 9 Simington told Lawson to “wake up” and, referring to himself, also told 10 Lawson he was in “bad trouble,” “you gotta help me,” [Petitioner] and the other 11 man were going to take him to the desert to kill him, and he had lost his car keys.4 12 Lawson intervened, causing [Petitioner] to release Simington from his grip. 13 Lawson asked [Petitioner] where Simington’s car keys were. [Petitioner] 14 whistled, and the other man arrived and pulled a set of keys from his pocket. The 15 keys did not belong to Simington. Lawson grabbed the other man and told him to 16 “[g]o get [Simington’s car] keys.”5 17 Lawson then went to the alley with [Petitioner] and the other man to retrieve 18 Simington’s keys. [FN4: In subsection B below, we set forth additional facts about 19 this event in our discussion of [Petitioner’s] sufficiency-of-evidence challenge to

20 4 Simington testified (in essence) that he assumed that Petitioner and the 21 other man had the keys to his car, because Simington did not have them after the scuffle. (2 RT 691.) He also testified that he told Lawson that he “lost [his] keys” 22 and that his keys were “missing.” (2 RT 701.) Lawson’s preliminary hearing 23 testimony, which the jury heard, reflected that Simington told Lawson, “They even got my car keys.” (3 RT 946.) 24 25 5 Lawson’s preliminary hearing testimony was that Petitioner whistled to summon the other man and that Petitioner then asked the other man for Simington’s 26 keys. (3 RT 958.) Simington testified that Lawson demanded Simington’s keys 27 from the other man when the other man responded to Petitioner’s whistle. (2 RT 701.) 28 1 the theft verdict.6] Simington stayed in the apartment. After returning Simington’s 2 keys, [Petitioner] and the other man left the scene. 3 About five or 10 minutes later, Simington went to the carport to inspect his 4 car and found it had been ransacked. Simington also noticed a pickup truck idling 5 at, and then departing from the alley’s southern end—the same end toward which 6 the other man had forcibly walked Simington after he and [Petitioner] had initially 7 apprehended Simington in the alley. 8 The police arrived, and Simington gave a statement to Deputy Benjamin 9 Casebolt. [Petitioner] was arrested. (LD 3 at 4-8.) 10 III. 11 PROCEDURAL HISTORY 12 Based on the August 21, 2015 attack, the District Attorney charged Petitioner 13 with two counts of assault with a deadly weapon: one count concerning Simington 14 (count 1) and the other concerning Schumann (count 14) (Cal. Pen. Code (“PC”) 15 § 245(a)(1)). (1 CT 151, 158.) 16 Based on the November 1, 2015 events, the District Attorney charged 17 Petitioner with the attempted willful, deliberate, and premeditated murder of 18 Simington (count 3) (PC §§ 664, 187(a)); assault on Simington with a deadly 19 weapon (a knife) (count 4) (PC § 245(a)(1)); dissuading Simington from testifying 20 by force or threat (count 5) (PC § 136.1(c)(1)); making criminal threats against 21 Simington (count 6) (PC § 422(a)); kidnapping Simington (count 7) (PC § 207(a)); 22 two counts of conspiracy to commit murder (counts 8 and 9) (PC §§ 182(a)(1), 23 187(a)); conspiracy to kidnap Simington (count 10) (PC §§ 182(a)(1), 207(a)); 24 second degree robbery of Simington’s personal property (count 11) (PC § 211); and 25 26

27 6 The Court sets out these additional facts in its analysis of Petitioner’s insufficiency of evidence claim. 28 1 first degree burglary (count 13) (PC § 459).7 (1 CT 148-159.) 2 The jury found Petitioner guilty of three counts of assault with a deadly 3 weapon (counts 1, 4, and 14), dissuading a witness from testifying (count 5), 4 criminal threats (count 6), attempted kidnapping8 (count 7), conspiracy to kidnap 5 (count 10), petty theft9 (count 11), and burglary (count 13). (1 CT 197-203, 206- 6 10.) The jury found Petitioner not guilty of conspiracy to commit murder (counts 8 7 and 9). (1 CT 204-05.) The trial court declared a mistrial on attempted murder 8 (count 3) because the jury could not reach a unanimous verdict on that charge. (4 9 RT 2414.) 10 Petitioner appealed. (LD 5, 6, 7.) The Court of Appeal affirmed his 11 convictions but reversed three 1-year sentence enhancements and remanded the 12 case for re-sentencing. (LD 3.) 13 On remand, the trial court vacated the sentence, struck the three 14 enhancements, and resentenced Petitioner to 17 years in state prison rather than 20. 15 (LD 4.) Petitioner again appealed. Petitioner’s appellate counsel filed a brief 16 pursuant to People v. Wende, 25 Cal.3d 436 (1979), and requested that the Court of 17 Appeal independently review the record. (LD 8.) The Court of Appeal found no 18 error and affirmed the judgment. (LD 9.) 19 Petitioner never filed a petition for review at the California Supreme Court in 20 either of his direct appeals. Instead, Petitioner accomplished exhaustion by filing a 21

22 7 The District Attorney’s Office charged Petitioner with two other crimes that it ultimately did not bring to trial: battery with serious bodily injury (PC § 243(d) 23 (count 2) and conspiracy to dissuade a witness from testifying by force or threat 24 (PC §§ 136.1(c)(1), 182(a)(1)) (count 12). (See 1 CT 81, 87.) 25 8 The jury found Petitioner not guilty of the greater crime of actual kidnapping. (1 CT 202.) 26 27 9 The jury found Petitioner not guilty of the greater crime of second degree robbery. (1 CT 207.) 28 1 habeas petition with the California Supreme Court (LD 10) that was summarily 2 denied in February 2020 (LD 11). 3 IV. 4 CLAIMS 5 Ground Two: Appellate counsel provided ineffective assistance of counsel 6 (“IAC”) by failing to file a petition in the California Supreme Court for review 7 raising the claims raised unsuccessfully on initial direct appeal. (Pet. at 5, 12-13.) 8 Ground Three: There is insufficient evidence to support Plaintiff’s 9 conviction on count 11 for petty theft. (Id. at 5, 13-14.) 10 V. 11 STANDARD OF REVIEW 12 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 13 Petitioner is entitled to habeas relief only if the state court’s decision on the merits 14 “(1) resulted in a decision that was contrary to, or involved an unreasonable 15 application of, clearly established Federal law, as determined by the Supreme 16 Court” or “(2) resulted in a decision that was based on an unreasonable 17 determination of the facts in light of the evidence presented in the State court 18 proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Cullen v. Pinholster, 563 U.S. 170, 181 19 (2011). 20 The relevant “clearly established Federal law” consists of only Supreme 21 Court holdings (not dicta), applied in the same context to which the petitioner seeks 22 to apply it, existing at the time of the relevant state court decision. Premo v. 23 Moore, 562 U.S. 115, 127 (2011). A state court acts “contrary to” clearly 24 established Federal law if it applies a rule contradicting the relevant holdings or 25 reaches a different conclusion on materially indistinguishable facts. Price v. 26 Vincent, 538 U.S. 634, 640 (2003). A state court “unreasonably appli[es]” clearly 27 established federal law if it engages in an “objectively unreasonable” application to 28 the facts of the correct governing legal rule. White v. Woodall, 572 U.S. 415, 425 1 (2014) (rejecting previous construction of section 2254(d) that a state court decision 2 involves an unreasonable application of clearly established Supreme Court law if 3 the state court “unreasonably refuses to extend a legal principle to a new context 4 where it should apply”). Habeas relief may not issue unless “there is no possibility 5 fair-minded jurists could disagree that the state court’s decision conflicts with [the 6 United States Supreme Court’s] precedents.” Harrington v. Richter, 562 U.S. 86, 7 103 (2011). “[T]his standard is ‘difficult to meet,’” Metrish v. Lancaster, 569 U.S. 8 351, 358 (2013), as even a “strong case for relief does not mean the state court’s 9 contrary conclusion was unreasonable,” Richter, 562 U.S. at 102. 10 VI. 11 DISCUSSION 12 A. CLAIM TWO: IAC. 13 1. The Relevant State Court Decision. 14 For purposes of applying AEDPA deference, the relevant state court decision 15 is the last reasoned decision, if any. Ylst v. Nunnemaker, 501 U.S. 797, 806 16 (1991). 17 Here, Petitioner first presented an IAC claim to the California Supreme Court 18 in his habeas petition. (LD 10 at 7, 46 [letter from counsel confirming he did not 19 file a petition for review].) Specifically, Petitioner argued that his counsel on direct 20 appeal failed to “raise the enclosed claims.” (Id. at 7.) The two “enclosed” claims 21 in his state habeas petition were (1) that the trial court erred in overruling defense 22 counsel’s objections to hear any portions of Lawson’s preliminary hearing 23 testimony (id. at 4-5), and (2) insufficient evidence to support petty theft (id. at 6)— 24 i.e., the two claims raised unsuccessfully on direct appeal. (See LD 3 at 11-20.) 25 The California Supreme Court denied the claim without explaining its 26 reasoning. (LD 11.) When faced with an unexplained denial, federal courts 27 applying AEDPA must independently consider whether any reasonably grounds 28 exist on which the state court could have denied the claim. Richter, 562 U.S. at 98, 1 102; Murray v. Schriro, 882 F.3d 778, 802 (9th Cir. 2018). 2 2. The California Supreme Court’s Denial Had A Reasonable Ground. 3 There is no right to counsel on discretionary appeals. Pennsylvania v. Finley, 4 481 U.S. 551, 555 (1987). In California, after the first appeal, direct review occurs 5 only at the California Supreme Court’s discretion. See Douglas v. California, 372 6 U.S. 353, 356 (1963); People v. Scott, 64 Cal. App. 4th 550, 558 n.6 (1998). 7 Where no constitutional right to counsel exists, there can be no claim of ineffective 8 assistance. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982). Petitioner, 9 therefore, cannot pursue an ineffective assistance claim based on his appellate 10 counsel’s failure to file a petition for review. See Lennan v. Janda, No. CV 12- 11 4510-JLS (JEM), 2015 U.S. Dist. LEXIS 167086, at *45 (C.D. Cal. Aug. 4, 2015); 12 Hollins v. Jaime, No. SACV 19-2487-FMO (KS), 2020 WL 2066141, at *6 (C.D. 13 Cal. Apr. 8, 2020) (“Because Petitioner had no constitutional right to appellate 14 counsel for discretionary review by the California Supreme Court, he could not 15 have been deprived of effective assistance by his appellate counsel’s failure to file a 16 timely request for review in that court.”). The California Supreme Court’s denial of 17 Petitioner’s IAC claim was therefore reasonable, and Petitioner does not warrant 18 habeas relief on this claim. 19 B. CLAIM THREE: Insufficiency of the Evidence. 20 1. The Relevant State Court Decision. 21 Petitioner first presented this claim on direct appeal. (LD 5.) He then 22 presented it to the California Supreme Court in his habeas petition (LD 10 at 29, 23 40) and received an unexplained denial (LD 11). 24 When the California Supreme Court issues an unexplained decision after a 25 lower court has issued a reasoned decision, the reviewing federal court “looks 26 through” the unexplained decision, presuming that the California Supreme Court 27 denied relief on the same factual and legal grounds as the lower court. Ylst, 501 28 U.S. at 804. Thus, for purposes of applying AEDPA deference, the relevant state 1 court decision is the reasoned decision of the Court of Appeal. (LD 3.) 2 2. Clearly Established Federal Law. 3 Under Jackson v. Virginia, in determining a due process claim based on the 4 sufficiency of the evidence, “the critical inquiry ... is whether, after viewing the 5 evidence in the light most favorable to the prosecution, any rational trier of fact 6 could have found the essential elements of the crime beyond a reasonable doubt.” 7 443 U.S. 307, 318 (1979). In undertaking collateral review of a state court decision 8 rejecting a claim of insufficiency of the evidence pursuant to 28 U.S.C. 9 § 2254(d)(1), the inquiry is “even more limited”; federal courts “ask only whether 10 the state court’s decision was contrary to or reflected an unreasonable application of 11 Jackson to the facts of a particular case.” Emery v. Clark, 643 F.3d 1210, 1213-14 12 (9th Cir. 2011) (citing Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005)). 13 The relevant inquiry is made in light of the applicable state law. Jackson, 443 U.S. 14 at 324 n.16; see also Emery, 643 F.3d at 1214 (“Insufficient evidence claims are 15 reviewed by looking at the elements of the offense under state law.”). 16 3. The California Court of Appeal’s Decision. 17 The Court of Appeal began by summarizing Petitioner’s briefing as arguing 18 that “the evidence supporting the jury’s guilty verdict on the petty theft charge 19 (count 11) was insufficient because there was no evidence that [Petitioner] intended 20 to steal Simington’s car keys, [Petitioner] knew or reasonably expected that the 21 other man who accompanied him would steal the keys, or anyone took the keys 22 from Simington.” (LD 3 at 17; see also LD 5 at 29-31.) 23 Next, the court summarized the elements of petty theft, relying on 24 CALCRIM 1800, the pattern jury instruction given to Petitioner’s jury (2 CT 228), 25 as follows: 26 The elements of theft are: The defendant (1) took possession of 27 property owned by someone else; (2) took the property without the 28 owner’s consent; (3) when taking the property, intended to deprive the 1 owner of it permanently or to remove it from the owner’s possession 2 for so extended a period that the owner would be deprived of a major 3 portion of the value or enjoyment of the property; and (4) moved the 4 property, even a small distance, and kept it for any period of time, 5 however brief. (CALCRIM No. 1800.) 6 (LD 3 at 18.) 7 The court then summarized the evidence that would support a finding on 8 each disputed element, as follows: 9 Lawson testified at the preliminary hearing about the events 10 surrounding Simington’s car keys, which testimony was read back at 11 trial, as follows.10 When Simington first arrived at the apartment with 12 [Petitioner] and saw Lawson, Simington “said that they even got my 13 car keys.” [3 RT 946.] At some point after Simington went into the 14 apartment, [Lawson] and Simington were asking [Petitioner] about the 15 whereabouts of Simington’s car keys. [Petitioner] then whistled, the 16 other man came, and [Petitioner] asked the other man for Simington’s 17 keys. [3 RT 949.] The other man produced keys but not Simington’s. 18 [3 RT 958.] Lawson, [Petitioner], and the other man went outside to 19 the carport area in the alley behind Simington’s apartment building, 20 where the other man went into one of the carport stalls [about five or 21 six stalls away] and returned about a minute later with Simington’s 22 keys. [3 RT 958-59.] 23 At trial, Simington testified about the events concerning the 24 keys as follows. Simington arrived home from work in his car, which 25

26 10 Lawson died after the preliminary hearing but before trial. Because he was 27 “unavailable,” his preliminary hearing testimony was read to the jury. (3 RT 937- 38, 1589.) 28 1 he parked in the alley behind his apartment building. [3 RT 918.] 2 After [Petitioner] initially tackled Simington in the alley, brandished a 3 knife, and with the other man, grabbed Simington and walked him 4 down the alley, Simington could not find his keys.11 [2 RT 689-91.] 5 Simington then persuaded [Petitioner] to let him go to his apartment, 6 and Lawson appeared. [2 RT 695-98.] When the other man came to 7 the apartment, Lawson grabbed him and said “come here” and “[g]o 8 get his keys.” [2 RT 701.] Simington stayed in the apartment while 9 Lawson, [Petitioner], and the other man retrieved his keys from the 10 carport. [2 RT 702.] 11 Lawson’s and Simington’s chronological accounts of the events 12 support a reasonable inference that Simington dropped his keys when 13 [Petitioner] initially chased him down the alley, and that [Petitioner] 14 himself or through the other man then took physical possession of 15 Simington’s keys from the alley floor. [Petitioner] and Simington’s 16 earlier physical altercation, the threats to kill Simington that 17 [Petitioner] made in the alley, [Petitioner]’s attempt to give Simington 18 the wrong keys at Simington’s apartment, and the presence of the 19

20 11 At the preliminary hearing, Simington testified that he had placed the keys 21 on the passenger seat after removing them from the ignition. (2 CT 310-11.) It is unclear what he did with them afterward, if anything. He also testified at the 22 preliminary hearing that “the black guy” accompanying Petitioner “ransack[ing]” 23 the car after “g[e]t[ting]” Simington’s “keys,” but then said, “You know, I don’t know what he did. I wasn’t there.” (2 CT 323.) Neither the prosecution nor 24 Petitioner’s counsel sought to introduce this portion of Simington’s preliminary 25 hearing testimony as evidence in the trial. In evaluating a sufficiency of the evidence claim, courts consider only the “record evidence” considered by the jury. 26 See Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (“[T]he dispositive 27 question under Jackson is ‘whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’”). 28 1 knife all support an inference that Simington never consented to 2 [Petitioner]’s taking his keys. 3 That evidence also supports a reasonable inference that 4 [Petitioner] intended to deprive Simington of his keys permanently or 5 for an extended period so as to deprive Simington of a major portion 6 of the value or enjoyment of his keys. This inference is especially 7 true because by taking the keys, [Petitioner] impeded Simington’s 8 ability to escape. Finally, the facts that (1) the other man retrieved 9 Simington’s keys from a place different from where Simington 10 dropped them, and (2) Simington’s car was ransacked between the 11 time he “lost” his keys and [Petitioner] and the other man returned 12 them at Lawson’s insistence [2 RT 702] support a reasonable 13 inference that [Petitioner] moved the keys and maintained possession 14 of them for some time. Therefore, the evidence adduced at trial was 15 sufficient to support each element of theft. 16 [Petitioner] also argues that the evidence of his intent to deprive 17 Simington of his car keys was insufficient because (1) Simington 18 testified that he told Lawson he had “lost” his keys, negating an 19 inference that [Petitioner] wanted to take Simington’s keys, (2) the 20 other man shortly thereafter returned the keys to Simington, and 21 (3) [Petitioner] and the other man had their own cars and were without 22 a third accomplice who could have simultaneously operated 23 Simington’s car. By these contentions, [Petitioner] asks us to draw 24 inferences contradicting those the jury drew. The substantial evidence 25 standard of review does not permit us to do so. 26 (LD 3 at 18-20.) 27 4. The California Court of Appeal Reasonably Denied this Claim. 28 The Court is skeptical of some of the California Court of Appeal’s factual 1 conclusions. For example, it found that the man retrieved Simington’s keys “from 2 a place different from where Simington dropped them.” (LD 3 at 20.) Yet 3 Simington did not know exactly when or where the keys left his possession, and the 4 carport area (where the keys were found) was along the alley where the initial 5 scuffle occurred. The California Court of Appeal also attributes some actions to 6 Petitioner that the evidence does not support. The court found that Petitioner 7 attempted to give Simington the wrong set of keys (id. at 19), but there is no 8 indication that Petitioner intended the other man to give Simington the wrong 9 keys—especially given that, according to Lawson, Petitioner then instructed the 10 other man to go retrieve the correct keys. 11 Nonetheless, even if the Court found that the state court based its decision on 12 an unreasonable determination of the facts—warranting de novo review (see Hurles 13 v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014))—the Court would still deny 14 Petitioner’s claim. The evidence could have supported multiple versions of events. 15 It is possible, maybe even likely, that Simington dropped the keys; his car was 16 unlocked, permitting Petitioner or the other man to “ransack” it; and the other man 17 found Simington’s keys fortuitously in the carport area. Still, one of the versions of 18 events supported by the evidence is the version that the jury accepted.12 Viewing 19 the evidence in the light most favorable to the prosecution, a rational trier of fact 20 could have found that Petitioner took possession of Simington’s car keys (the 21 primary element in dispute, as in these circumstances the other elements follow 22 from this one13). Petitioner had a motive to take the keys—i.e., preventing 23 12 Notably, the jury rejected the second degree robbery charge (which 24 required that Petitioner took the keys from Simington’s person, by force or fear or 25 to prevent Simington from resisting) and the lesser-included grand theft charge (which required that theft was from Simington’s person), opting instead for petty 26 theft. (4 RT 1857-60, 2423.) 27 13 If Petitioner did in fact take the keys, then it would have likely involved 28 moving the keys, without Simington’s consent, and with the intent to deprive 1 Simington’s escape. Petitioner or the other man had the opportunity to take the 2 keys—i.e., during the scuffle or shortly thereafter. Circumstantial evidence 3 supported the notion that Petitioner—or, at his instruction or with his knowledge 4 and support, the other man14—took Petitioner’s keys either from Petitioner’s car or 5 from the ground, and later dropped them or placed them in the carport area. When 6 Lawson told Petitioner to return Simington’s keys, Petitioner did not protest— 7 “What keys? We didn’t take his keys!”—but instead whistled for the other man 8 and asked him for the keys, suggesting that Petitioner knew that the other man was 9 responsible. Nor did the other man protest—“What keys?”—but instead reached in 10 his pocket for keys. When Simington disclaimed the produced keys, the other man 11 led Lawson directly to the place where the keys were and produced them a mere 12 minute later, suggesting that he had remembered (or had always known) where the 13 keys had been placed. Further, the car was ransacked (although granted it is 14 unclear whether the car was locked at the time). This is not overwhelming 15 evidence, but nor is it so flimsy that no rational trier of fact could have convicted 16 Petitioner. 17 / / / 18 / / / 19 / / / 20

21 Simington of the enjoyment of the keys. Even kicking the keys away so that Simington could not reach them—i.e., so that they were under Petitioner’s control 22 and not Simington’s—might support a petty theft conviction. For example, the jury 23 was instructed, “A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, 24 either personally or through another person.” (4 RT 1859.) 25 14 The trial court instructed the jury on aiding and abetting, because “the 26 other individual involved ended up with the keys.” (3 RT 1558; see also 3 RT 1581 27 [prosecutor telling jury, “it doesn’t matter which of them took the keys because we have something in the law called aiding and abetting”]; 4 RT 1827-28.) 28 1 V. 2 CONCLUSION 3 Based on the foregoing, the Court directs that judgment be entered denying 4 | the Petition on the merits. 5 6 DATED: July 14, 2021 A} & os, Seat? 7 KAREN E. SCOTT g UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17