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MacDonald v. Hedgpeth

United States Court of Appeals, Ninth Circuit

November 5, 2018

Felix Estuardo Maquiz MacDonald, Petitioner-Appellant,
v.
Anthony Hedgpeth, Warden, Respondent-Appellee.

          Argued and Submitted March 8, 2018

          Appeal from the United States District Court for the Central District of California D.C. No. 5:11-cv-00970-JAK-PJW John A. Kronstadt, District Judge, Presiding

          Michael T. Drake (argued), Research and Writing Attorney; Hilary L. Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

          Daniel Rogers (argued), Supervising Deputy Attorney General; Kevin Vienna, Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

          Before: Diarmuid F. O'Scannlain [*] and Jacqueline H. Nguyen, Circuit Judges, and Michael H. Simon, [**] District Judge.

         SUMMARY [***]

         Habeas Corpus

         The panel reversed the district court's denial of a habeas corpus petition brought by California state prisoner Felix Estuardo Maquiz MacDonald (Maquiz), and remanded regarding imposition of a gang enhancement pursuant to California Penal Code § 186.22(b)(1) to Maquiz's sentence for a robbery conviction.

         The panel held that the state trial court's admission of opinion testimony from a law enforcement expert on street gangs, who described for the jury the potential benefits that a street gang might receive when a member commits a robbery by himself, did not deny Maquiz a fundamentally fair trial and due process, and was not contrary to, or an unreasonable application of, Supreme Court precedent.

         The panel held that such expert testimony was, however, insufficient to support Maquiz's ten-year gang enhancement to his sentence for a robbery that he committed alone. The panel held that the state court's decision was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979), and no rational trier of fact could have found this expert testimony by itself sufficient to prove the elements of the robbery gang enhancement beyond a reasonable doubt.

         Dissenting, Judge O'Scannlain wrote that despite the Supreme Court's repeated admonitions to this Circuit that the Antiterrorism and Effective Death Penalty Act means what it says, the majority treats this appeal just like another State court direct review of a criminal conviction and erroneously orders grant of the writ based on California law, rather than Federal law.

          OPINION

          SIMON, DISTRICT JUDGE

         I. INTRODUCTION

         Felix Estuardo Maquiz MacDonald ("Maquiz")[1] appeals the district court's denial of his petition for writ of habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We review de novo a district court's denial of a writ of habeas corpus. Poyson v. Ryan, 879 F.3d 875, 887 (9th Cir. 2018).

         In this appeal, we address two questions. First, we consider whether the state trial court's admission in evidence of opinion testimony from a law enforcement expert on street gangs, who described for the jury the potential benefits that a street gang might receive when a member commits a robbery by himself, denied Maquiz a fundamentally fair trial and due process under the U.S. Constitution. We conclude that it did not. Second, we consider whether such expert testimony by itself was sufficient to support Maquiz's ten-year gang enhancement to his sentence for a robbery that he committed alone in 2001. We conclude that it was not. We hold that the state court's decision was an unreasonable application of Jackson v. Virginia, and no rational trier of fact could have found this expert testimony by itself sufficient to prove the elements of the 2001 robbery gang enhancement beyond a reasonable doubt. 443 U.S. 307, 319 (1979) (Stevens, J., concurring). Because there was no other evidence presented at trial to support the gang sentencing enhancement for the 2001 robbery, we reverse the district court's denial of the petition for habeas relief and remand for resentencing by the state trial court.

         II. BACKGROUND

         A. Facts

         Early one morning in June 2001, an adult male was using a pay phone outside a restaurant in Perris, California. Two friends of that person were sitting on a bench nearby, waiting for the call to end. Maquiz approached the person on the pay phone from behind. Maquiz held a silver handgun in one hand and kept his other hand over his face. He also wore a knitted cap pulled down to his eyes, further concealing his identity. When the friends realized what was happening, they ran to a gas station and called the police. Maquiz told the person at the pay phone to give Maquiz money or he would shoot. Maquiz searched through the robbery victim's pockets and took the victim's wallet. Maquiz then told the victim to run or else Maquiz would kill him. The victim ran to the same gas station and found his friends.

         Within minutes, police arrested Maquiz in the vicinity, based on the description given by the victim and his friends. When Maquiz first saw the police, he threw something in the bushes. The police later found a loaded silver .22-caliber handgun. Maquiz had on his person eight .22-caliber bullets, which matched the bullets from the gun found in the bushes. Maquiz also had $70. He did not have the victim's wallet. The victim and his friends identified Maquiz.

         B. Trial

         In January 2002, Maquiz went to trial before a California state court jury. The prosecution charged Maquiz with three counts of second degree robbery. One count related to the June 2001 robbery that Maquiz committed alone, and two counts related to a robbery that Maquiz committed in May 1999 with other gang members. The prosecution also charged Maquiz with one count of unlawfully carrying a concealed weapon and one count of showing false identification to a police officer. In addition, the prosecution sought gang sentencing enhancements for each of the three robbery counts, a personal firearm use sentencing enhancement for the 2001 robbery, and a gang/vicarious firearm use sentencing enhancement for each of the two 1999 robbery counts. The court asked the jury to determine whether certain allegations relating to the sentencing enhancements were true.

         Only the gang sentencing enhancement for the 2001 robbery is at issue in this appeal. California Penal Code ("CPC") § 186.22(b)(1) provides for additional punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." For violent felonies, such as robbery, the statute prescribes an additional term of ten years imprisonment as a gang penalty enhancement. CPC § 186.22(b)(1)(C).

         The jury convicted Maquiz on all five counts: three counts of second degree robbery, one count of carrying a concealed weapon, and one count of showing false identification to a police officer. The jury also found true the allegations that Maquiz committed counts 1 through 4[2] for the benefit of a street gang (the gang enhancement), that Maquiz personally used a firearm in count 1 (the personal firearm use enhancement), and that a principal other than Maquiz used a firearm in counts 2 and 3 (the gang/vicarious firearm use enhancement).

         C. After Trial

         Maquiz appealed. After several state court appeals, the trial court resentenced Maquiz for the second time in November 2005. For count 1, Maquiz received a total sentence of twenty-three years imprisonment, consisting of three years for second degree robbery, plus a consecutive term of ten years for personally using a firearm in the commission of a felony, plus a consecutive term of ten years for the gang enhancement. For counts 2 and 3 (related to the 1999 robbery that Maquiz committed with other gang members), the trial court included a gang enhancement of three years each for counts 2 and 3 and ordered that Maquiz serve portions of his sentence for those crimes concurrently with his sentence imposed in count 1. For the charge of unlawfully carrying a concealed firearm (count 4), the court sentenced Maquiz to two years for the underlying offense plus a consecutive term of three years as a gang enhancement. The court stayed all three three-year gang sentencing enhancements imposed in counts 2, 3, and 4.

         Maquiz did not directly appeal his final sentence. He did, however, file pro se a habeas petition in state court, alleging five grounds for relief, including the two certified in this appeal. The California Court of Appeal denied Maquiz's habeas petition without comment. The California Supreme Court granted review and issued an order directing the Court of Appeal to vacate its earlier order on other grounds. The California Supreme Court did not, however, address the Court of Appeal's denial of Maquiz's claims about improper admission of gang expert testimony or insufficient evidence to support the gang penalty enhancement. In June 2011, Maquiz filed his federal habeas petition.

         The district court denied that petition, and this appeal followed. We issued a certificate of appealability on two issues. First, we asked whether the state trial court violated Maquiz's rights to a fair trial and due process under the U.S. Constitution by permitting a law enforcement expert on street gangs to testify that in his opinion Maquiz committed the 2001 robbery for the benefit of a gang. Second, we asked whether there was sufficient evidence in the trial record to support the gang sentencing enhancement for the 2001 robbery.

         III. HABEAS STANDARDS

         A petitioner may obtain relief on federal habeas claims that have been "adjudicated on the merits in state court proceedings" only if the state court's adjudication resulted in a decision (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). When a petitioner presents claims to a state court and relief is denied, "it may be presumed that the state court adjudicated the claim[s] on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011). "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. at 98.

         IV. ADMISSIBILITY OF EVIDENCE

         At trial, a deputy sheriff testified as an expert witness on street gangs. The deputy told the jury that he was familiar with the Perres Mara Villa ("PMV") gang and that Maquiz was an active member of that gang. Maquiz argues that the deputy's testimony was equivalent to an opinion that the gang enhancement allegations were true.

         Federal habeas courts generally do not review questions of state evidentiary law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Evidence erroneously admitted warrants habeas relief when it results in the denial of due process under the U.S. Constitution. Id. at 68. "Although '[a] witness is not permitted to give a direct opinion about the defendant's guilt or innocence . . . an expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact.'" Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009) (quoting United States v. Lockett, 919 F.2d 585, 590 (9th Cir. 1990)).

         In Briceno v. Scribner, 555 F.3d 1069 (9th Cir. 2009), we addressed a nearly identical challenge. We noted that "[f]ederal habeas courts do not review questions of state evidentiary law" and concluded that because "there is no clearly established constitutional right to be free of an expert opinion on an ultimate issue . . . the admission of the opinion testimony of [the gang expert] cannot be said to be contrary to, or an unreasonable application of, Supreme Court precedent." Id. at 1077-78 (internal citation omitted).

         The deputy's testimony did not violate Maquiz's right to due process. The state trial court's admission in evidence of the deputy's testimony also was not contrary to, or an unreasonable application of, Supreme Court precedent. The district court therefore did not err in denying this aspect of Maquiz's habeas petition.

         V. SUFFICIENCY OF EVIDENCE

         A. Jackson and AEDPA

         Maquiz "faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). First, he must meet the burden under Jackson v. Virginia of showing that "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. 307, 319 (1979) (Stevens, J., concurring) (emphasis in original). Second, after the passage of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"), the standards of Jackson are applied "with an additional layer of deference," requiring the federal court to determine "whether the decision of the [state court] reflected an 'unreasonable application of' Jackson . . . to the facts of this case." Juan H., 408 F.3d. at 1274-75; see also Bruce v. Terhune, 376 F.3d 950, 960 (9th Cir. 2004) (O'Scannlain, J., concurring). In considering a challenge to the sufficiency of the evidence, however, "[s]peculation and conjecture cannot take the place of reasonable ...


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