Orlando Lopez v. Trent Allen ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORLANDO LOPEZ, No. 19-16606
Petitioner-Appellant,
D.C. No.
v. 3:17-cv-03390-
WHA
TRENT ALLEN, ∗ Acting Warden of
Salinas Valley State Prison,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted December 7, 2021
San Francisco, California
Filed September 2, 2022
Before: Susan P. Graber and Daniel P. Collins, Circuit
Judges, and Jennifer Choe-Groves, ** Judge.
∗
William Muniz is no longer the warden of Salinas Valley State
Prison and is automatically substituted in this case by his successor,
Acting Warden Trent Allen. Fed. R. Civ. P. 25(d).
**
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
2 LOPEZ V. ALLEN
Opinion by Judge Choe-Groves;
Dissent by Judge Graber
SUMMARY ***
Habeas Corpus
The panel affirmed the district court’s denial of Orlando
Lopez’s habeas corpus petition challenging his California
conviction for multiple crimes resulting from a shooting at a
backyard barbecue.
Lopez raised several ineffective assistance of counsel
claims under Strickland v. Washington, 466 U.S. 688 (1984),
and the panel applied AEDPA deference to the state habeas
courts’ denial of relief.
Lopez argued that trial counsel was ineffective for failing
to consult, appoint, and introduce evidence at trial from an
expert on firearms and firearms acoustics. The prosecution’s
theory of the case was that two shooters, Paul Braden and
Lopez, participated in the shooting both using shotguns.
Lopez argued that an expert could have created reasonable
doubt as to Lopez’s guilt by providing testimony that the
different sounds described by witnesses suggested that the
second shooter did not use a shotgun, which would have
pointed towards Kevin Stone as the second shooter because
the evidence showed that he carried a .22 caliber rifle.
Taking as true that trial counsel failed to consult with an
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LOPEZ V. ALLEN 3
expert at all, the panel held that even assuming that this
failure fell below an objective standard of reasonableness, it
did not create the necessary prejudice to warrant relief.
Lopez argued that trial counsel was ineffective for failing
to introduce expert testimony on the behavior of chronic
methamphetamine users, which would have demonstrated
that Stone was prone to impulsive and violent acts and that
his testimony was unreliable. Noting that Stone’s drug
addiction and criminal history were made known during the
trial, the panel held that it was not objectively unreasonable
for the state habeas court to conclude that trial counsel's
conduct was not constitutionally deficient and that any error
that might have occurred did not create sufficient prejudice
to call into question the outcome of the case.
Lopez argued that trial counsel was ineffective for failing
to use Stone’s prior inconsistent statements to impeach Stone
and Sergeant Clements. The panel held that a reasonable
jurist could conclude that trial counsel’s decision to not
impeach Stone and Sergeant Clements with the prior
statements was not objectively unreasonable, and that the
state court could reasonably conclude that there is not a
reasonable probability that the outcome of the proceedings
would have been different if trial counsel had more
forcefully attempted to impeach them.
Lopez argued that trial counsel was ineffective for failing
to introduce evidence of the respective heights of those
involved in the shooting. The panel held that even if trial
counsel’s failure to address the respective heights fell below
professional standards, a reasonable jurist could conclude
that the outcome of the trial would not have been different if
trial counsel had done so.
4 LOPEZ V. ALLEN
Lopez argued that trial counsel was ineffective for failing
to request a jury instruction on the need to corroborate
accomplice testimony. The panel held that a reasonable
jurist could conclude that any error by counsel in failing to
request such an instruction was harmless and did not create
sufficient prejudice to meet the Strickland standard.
Lopez argued that the cumulative impact of trial
counsel’s individual deficiencies was sufficiently prejudicial
to warrant habeas relief. The panel held that because Lopez
failed to establish multiple errors of constitutional
magnitude, there can be no accumulation of prejudice
amounting to a denial of due process or meeting the
Strickland standard.
Dissenting, Judge Graber wrote that Lopez’s trial
counsel provided ineffective assistance by failing to consult
with and failing to introduce evidence from an expert in
firearm acoustics, that no fairminded jurist could reasonably
conclude that there was no prejudice, and that the California
courts’ conclusion to the contrary unreasonably applied
Strickland.
COUNSEL
Matthew Dirkes (argued), Boersch & Illovsky LLP,
Oakland, California; Dylan Schaffer, Kerley Schaffer LLP,
Oakland, California; for Petitioner-Appellant.
Arthur P. Beever (argued), Deputy Attorney General; Peggy
S. Ruffra, Supervising Deputy Attorney General; Jeffrey M.
Laurence, Senior Assistant Attorney General; Rob Bonta,
Attorney General; Office of the Attorney General, San
Francisco, California; for Respondent-Appellee.
LOPEZ V. ALLEN 5
OPINION
CHOE-GROVES, Judge:
Petitioner Orlando Lopez, a state prisoner, appeals the
district court’s denial of his petition for habeas corpus
brought pursuant to 28 U.S.C. § 2254. Petitioner asserts that
the California state court unreasonably applied Strickland v.
Washington, 466 U.S. 688 (1984), in determining that he did
not receive ineffective assistance of trial counsel. We
disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was convicted of multiple crimes resulting
from a shooting at a June 18, 2011 backyard barbecue. Eight
days prior to the shooting, a fight occurred at a high school
graduation ceremony involving Petitioner’s brother,
Leonardo Lopez; 1 Josh Gamble; Joseph Armijo; and a group
called the “Avenue Boyz.” During the fight, Leonardo
struck Gamble in the eye. Tensions remained high during
the week following the fight.
On or around June 14, 2011, Petitioner attended a party
at the home of Leonardo and Leonardo’s then-girlfriend.
During the party, Anthony Gaston brought a shotgun to the
home, which he left between some boxes on the porch with
the intention of retrieving the weapon later. Petitioner was
standing next to Leonardo when Gaston asked Leonardo for
permission to leave the gun. Gaston testified that he did not
see the shotgun again after leaving it at Leonardo’s home.
1
For clarity, Orlando Lopez will be referred to throughout as
“Petitioner” and Leonardo Lopez will be referred to as “Leonardo.”
6 LOPEZ V. ALLEN
On the day of the shooting, a graduation party was held
at Leonardo’s home. Members of the Avenue Boyz, Paul
Braden, and Petitioner were in attendance. During the party,
Braden argued with Ross Sparks and a woman named
Crystal Pearls over the phone. Ross Sparks was Gamble’s
cousin. Witnesses to the conversation testified that they
overheard Braden say, “Let’s meet up and handle this,” and
“I’ll kill you. I’ll kill your family.” Petitioner was also
involved in the conversation and was described by witnesses
as “pretty irritated” and agitated and overheard attempting to
arrange a place to fight. A series of aggressive text messages
were also exchanged in which the sender identified himself
as “Nano,” a nickname used by Petitioner. Ross Sparks
claimed that he called the sender, recognized Petitioner’s
voice, and heard Petitioner threaten to “bash me and my
family’s face in with the lead pipe that his brother hit
[Gamble] in the face with.” After the telephone and text
message exchanges, a group discussed the possibility of
fighting Ross Sparks.
Petitioner and Braden left the party and returned with a
black shotgun wrapped in a sweatshirt. Braden then took the
gun into a garage and removed the weapon’s stock with a
saw. Petitioner was present for the gun’s alteration. After
modifying the weapon, Braden made several statements
suggesting his intent to use the gun, including “I didn’t bring
this gun to Clearlake for nothing. Let’s go use it,” “I’m
bored, let’s go shoot somebody,” and “I didn’t bring my gun
for nothing, we need to go do this.” Braden also expressly
stated his desire to “[w]alk down to [Ross Sparks’] home and
start shooting them.” Petitioner was present for these
statements.
At approximately 7:00 p.m., a man named Kevin Stone
received a series of text messages from Petitioner’s phone
LOPEZ V. ALLEN 7
number asking for a ride and stating that he had “a lick” and
“straps.” 2 When the party disbanded between 9:30 p.m. and
10:00 p.m., Stone and his girlfriend picked up Petitioner and
Braden. Braden was carrying the shotgun wrapped in a
sweatshirt when he left the party. Stone testified that
Petitioner was carrying “something similar” to Braden’s
gun. One witness testified that Petitioner “wasn’t holding
anything” when he left the party.
Trial testimony established that Stone was a
methamphetamine addict and dealer. Stone admitted that he
used methamphetamines frequently and that, on the day of
the shooting, he drank multiple alcoholic beverages. After
picking up Braden and Petitioner, Stone retrieved a
.22 caliber rifle from his girlfriend’s apartment.
On the same evening, a backyard barbecue was held at
Ross Sparks’ home. Some participants from the earlier
graduation fight attended the barbecue. Stone drove
Petitioner and Braden to the area of Ross Sparks’ home and
the men entered a neighbor’s backyard. The yards were
separated by a six-foot-tall wooden fence. Between
10:30 p.m. and 10:45 p.m., gunshots were fired from the
fence area into Ross Sparks’ yard. Witnesses described
seeing muzzle flashes from a notch in the top of the fence
and a gap in the fence created by two missing boards. The
shooting resulted in the death of a four-year-old child and
injuries to five other people. After the shooting, police
observed holes in the wall of Ross Sparks’ home consistent
with 9-shot and 15-shot buckshot. They also recovered three
2
Stone explained at trial that a “lick” is slang for getting something
for nothing, such as committing a robbery, and “straps” is slang for
firearms.
8 LOPEZ V. ALLEN
expelled shotgun shells that an expert opined had previously
been cycled through the same gun.
Stone was interviewed three times following his arrest.
The first interview occurred on July 1, 2011 with Sergeant
Clements and Detective Alvarado of the Clearlake Police
Department. During the interview, Stone did not state
whether Petitioner or Braden had a gun when they were
picked up from Leonardo’s home. He identified only Braden
as having fired shots into Ross Sparks’ yard. A second
interview of Stone was conducted on November 3, 2011 and
involved Sergeant Clements, Lake County District Attorney
Anderson, and Stone’s attorney. Stone again only identified
Braden as a shooter. Unlike his earlier statement, Stone
claimed that Petitioner also had a shotgun that he was given
by Leonardo and that he observed Petitioner pass through the
fence. Stone told the interviewers that he was unsure if
Petitioner had fired the shotgun. A third interview of Stone
was conducted on May 15, 2012 with District Attorney
Anderson and Stone’s attorney. During the third interview,
Stone continued to claim that both Petitioner and Braden had
shotguns and that Braden fired into Ross Sparks’ yard.
Stone’s account changed from the prior interviews in that he
stated that Petitioner and Braden both had shotguns when
they were picked up from Leonardo’s home and that he only
observed Petitioner stepping away from the fence and could
not tell if Petitioner stepped through the fence. Prior to trial,
Stone entered into a plea agreement with the prosecution and
testified against Braden and Petitioner. As part of the
agreement, he pled no contest to accessory to murder after
the fact, conspiracy to commit robbery, and possession of a
firearm by a prohibited person. The agreement reduced
Stone’s potential sentence from life in prison to roughly ten
years of incarceration.
LOPEZ V. ALLEN 9
At trial, after disclosing the plea agreement and his
immunity, Stone testified that Petitioner and he had
exchanged text messages on the day of the shooting in which
Petitioner asked Stone if he was interested in “pulling a lick”
and claimed to have “straps.” Stone also testified that
Braden fired several rounds from a shotgun over the fence
and that he observed Petitioner holding a shotgun, but never
witnessed it being fired. Stone admitted that his earlier claim
that he saw Petitioner stepping through the fence was based
on the preliminary hearing testimony of others, not his own
recollection of events. Despite this clarification, Stone’s
prior account was reiterated during the testimony of Sergeant
Clements.
Descriptions of the shooting provided by other witnesses
varied considerably. The area around the fence was dark and
many of the witnesses conceded to being intoxicated or
otherwise impaired at the time of the shooting. Some
witnesses testified that the shooting lasted a few seconds.
One witness believed the shooting to have lasted for several
minutes. Some of the witnesses described the firearms used
during the shooting as having different sounds. Other
witnesses described the shots as sounding similar to one
another. Two witnesses testified that they could not perceive
a difference in acoustics because they were in shock and
their ears were ringing after the first shot. Two witnesses
attributed the sounds that they described to differences in
ammunition rather than differences in weapons.
Petitioner was convicted of one count of first-degree
murder, five counts of attempted murder, six counts of
assault with a firearm, two counts of mayhem, and one count
of discharging a firearm at an occupied dwelling. He was
sentenced to a prison term of 311 years to life. Petitioner
and Braden appealed their convictions to the California
10 LOPEZ V. ALLEN
Court of Appeal. The state appellate court reversed
Petitioner’s first-degree murder conviction under People v.
Chiu, 325 P.3d 972 (Cal. 2014), superseded by statute on
other grounds as stated in People v. Lewis, 491 P.3d 309,
313 n.3 (Cal. 2021), 3 ordered that the sentences for mayhem
be stayed, and affirmed the remaining judgment. People v.
Lopez, No. A136253, 2016 WL 634651 (Cal. Ct. App. Feb.
17, 2016) (unpublished).
Petitioner also filed a petition for habeas corpus with the
California Court of Appeal, raising arguments of ineffective
assistance of counsel. The court denied the petition by
summary order on the same day the direct appeal was
resolved. One justice dissented, concluding “that [Lopez]
has articulated a prima facie case for relief concerning his
claim of ineffective assistance of counsel based on trial
counsel’s failure to present testimony from a firearms expert
regarding firearms acoustics, warranting issuance of an order
to show cause.” Petitioner subsequently filed a petition for
habeas corpus with the California Supreme Court, which
denied the petition summarily.
Petitioner filed a federal habeas petition under 28 U.S.C.
§ 2254 with the United States District Court for the Northern
District of California. The district court denied the petition,
and Petitioner filed a timely notice of appeal. We remanded
to the district court to determine whether to grant a certificate
of appealability, and the district court denied the certificate
after concluding that “reasonable jurists would not ‘find the
district court’s assessment of the constitutional claims
debatable or wrong.’” We proceeded to grant a certificate of
3
The court found that it was possible that the jury improperly based
its verdict on that count on the natural and probable cause doctrine of
aiding and abetting.
LOPEZ V. ALLEN 11
appealability on the issue of “whether trial counsel rendered
ineffective assistance, including whether counsel was
ineffective for failing to obtain a firearms expert to testify on
firearms acoustics.”
STANDARD OF REVIEW
We review the district court’s dismissal of a habeas
petition de novo. Gulbrandson v. Ryan, 738 F.3d 976, 986
(9th Cir. 2013). The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) applies because the petition
was filed after April 24, 1996. Woods v. Sinclair, 764 F.3d
1109, 1120 (9th Cir. 2014). Under AEDPA, federal courts
may grant a writ of habeas corpus only if the state court’s
adjudication of claims on the merits “resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “was 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).
In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court defined the “benchmark for judging any
claim of ineffectiveness” as “whether counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” Id. at 686. To prevail on a claim of ineffective
assistance of counsel, Petitioner must establish that his
counsel’s performance was constitutionally deficient and
that the deficiency prejudiced the defense. Id. at 687.
Federal habeas review is highly deferential to the state courts
and a petition should only be granted to correct “extreme
malfunctions in the state criminal justice systems.” Greene
v. Fisher, 565 U.S. 34, 38 (2011) (citation omitted). Relief
is warranted only when “the state court’s ruling on the claim
12 LOPEZ V. ALLEN
being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U.S.
86, 103 (2011).
DISCUSSION
Petitioner raises several ineffective assistance of counsel
claims based on: (1) trial counsel’s failure to consult and
introduce the expert testimony of a firearms and firearms
acoustics expert; (2) trial counsel’s failure to introduce
expert testimony on the behavior of chronic
methamphetamine users; (3) trial counsel’s failure to
impeach Stone and Sergeant Clements with Stone’s prior
inconsistent statements; (4) trial counsel’s failure to
introduce evidence of the respective heights of those
involved in the shooting; (5) trial counsel’s failure to request
a jury instruction on the need to corroborate accomplice
testimony; and (6) the aggregate failure to attempt any of the
foregoing actions during his representation of Petitioner.
We are not persuaded by any of the arguments raised.
A. Firearms and Firearms Acoustics Expert
Petitioner’s initial argument is that trial counsel was
ineffective for failing to consult, appoint, and introduce
evidence at trial from an expert on firearms and firearms
acoustics. The prosecution’s theory of the case was that two
shooters, Paul Braden and Petitioner, participated in the
shooting both using shotguns. Two pieces of evidence were
offered in support of Petitioner having a shotgun during the
shooting. The first was Anthony Gaston’s testimony that
Petitioner knew that a single-action shotgun was stored on
the porch of Leonardo’s home, and the shotgun went missing
after Gaston left it there. The second was Stone’s testimony
LOPEZ V. ALLEN 13
that he saw Petitioner with a shotgun at the scene of the
shooting. Petitioner argues that an expert could have created
reasonable doubt as to Petitioner’s guilt by providing
testimony that the different sounds described by witnesses
suggested that the second shooter did not use a shotgun.
That would have pointed towards Stone as the second
shooter, because the evidence showed that he carried a
.22 caliber rifle.
Because the California Court of Appeal and the
California Supreme Court both summarily denied
Petitioner’s habeas petition, we must apply AEDPA
deference to their conclusion that Petitioner did not state a
prima facie case for relief. See Cullen v. Pinholster,
563 U.S. 170, 188 n.12 (2011); Nunes v. Mueller, 350 F.3d
1045, 1054 (9th Cir. 2003). In doing so, “we assume that the
factual allegations in [Petitioner’s] [state] habeas petition are
true.” Reis-Campos v. Biter, 832 F.3d 968, 973 (9th Cir.
2016). Accordingly, we take as true that Petitioner’s trial
counsel failed to consult an acoustics expert at all. Even
assuming that this failure fell below an objective standard of
reasonableness, it did not create the necessary prejudice to
warrant habeas relief.
In support of his petitions in both the state and federal
courts, Petitioner offered the declaration of Ben Tisa, a
firearms expert, which concludes, based on the accounts of
witnesses, that the second gun used during the shooting was
a .22 caliber rifle carried by Stone. Witness accounts of the
shooting varied considerably regarding the number of shots
fired, the sounds of the weapons, and the duration of the
event. Though multiple witnesses provided accounts of the
shooting, Tisa relies primarily on the testimony of only four
people: Ross Sparks, Josh Gamble, Andrew Sparks, and Ian
Griffith. In his analysis, Tisa cherry-picks details provided
14 LOPEZ V. ALLEN
by these witnesses and largely ignores conflicting facts. For
example, Tisa relies on a statement made by Ross Sparks
during a preliminary hearing in which Ross Sparks stated
that he believed one of the weapons to be a lower-sized rifle
or pistol. Tisa does not acknowledge that at trial Ross Sparks
testified that he believed both weapons to have been
shotguns using different types of ammunition. Similarly,
Tisa discusses Andrew Sparks’ recollection of the number of
shots fired and the location of the shooters, but does not
acknowledge that Andrew Sparks attributed the difference in
sound to the types of ammunition used and testified that he
was certain that the guns were both shotguns.
Tisa’s declaration suffers from multiple weaknesses that
would have been readily apparent to a jury and exploitable
by opposing counsel. Tisa does not acknowledge the
considerable discrepancy in testimony regarding the sounds
of the weapons, the number of shots fired, and the duration
of the shooting. The declaration is largely silent as to the
fact that multiple witnesses testified to being impaired by
drugs, alcohol, darkness, or the loud sound of the initial shot.
Tisa also fails to address whether any acoustic differences
observed by the witnesses might be attributable to different
types of ammunition, as was suggested by witnesses during
the trial. Some of these problems in the witness testimony
were noted by trial counsel in his closing statement.
The opinions in the declaration that are less dependent
on witness testimony are also open to scrutiny. Tisa opines
that a single-action shotgun was unlikely to be the weapon
used because it could not have been fired more than once
during the timeframe of the shooting. It is unclear, however,
how long the shooting lasted because witness testimony
ranged from a few seconds to three minutes. Regardless,
LOPEZ V. ALLEN 15
even if Petitioner were only able to fire a single shot, it would
have been enough to warrant conviction.
Tisa also discounts the possibility of a single-action
shotgun being used, because he noted that expended shell
casings consistent with a single-action shotgun were not
found after the shooting. This opinion fails to consider the
possibility that Petitioner collected and removed any
expended shell casings from the scene. In light of Tisa’s
observation that the slowness of a single-action shotgun is
the result of expended shell casings requiring manual
ejection, this possibility would be reasonable.
Because Tisa’s declaration is conclusory, lacks
consideration of contrary evidence, and fails to address
counterarguments that are readily apparent, a reasonable
jurist would not be compelled to find its absence from trial
sufficiently prejudicial.
Furthermore, the jury at trial was presented with
considerable evidence to challenge Stone’s partially
incriminating testimony, in which he asserted that Petitioner
had a shotgun during the shooting event. The jury was made
aware of Stone’s drug use, criminal history, prior
inconsistent statements, and motive to lie. Trial counsel
emphasized these points to the jury during his closing
statement. The jury was also aware that Petitioner had a
possible motive to participate in the shooting and that
Petitioner involved Stone in the crime by inviting him to
participate in a robbery and claiming to have guns.
Considering these facts, a reasonable jurist could conclude
that there is not a reasonable probability that the outcome of
the proceedings would have been different if the testimony
of an expert had been presented.
16 LOPEZ V. ALLEN
B. Methamphetamine Expert
Petitioner argues that the prosecution relied heavily on
the testimony of Stone and that trial counsel had an
obligation to highlight evidence that might have suggested
Stone was the second shooter. He specifically points to trial
counsel’s failure to present expert testimony on the
behavioral impact of Stone’s chronic methamphetamine use.
Petitioner asserts that such testimony would have
demonstrated that Stone was prone to impulsive and violent
acts and that his testimony was unreliable.
An attorney’s complete failure to investigate and offer
evidence in support of defense theories may be
constitutionally deficient, see Hendricks v. Calderon,
70 F.3d 1032, 1040 (9th Cir. 1995); however, an attorney is
not required to offer evidence that is unnecessary or
redundant, see Bonin v. Calderon, 59 F.3d 815, 837–38 (9th
Cir. 1995) (recognizing that a reasonable attorney would not
provide witness declarations or undertake the expense of
requiring witnesses to travel to merely reiterate facts already
supported by substantial evidence). Stone’s drug addiction
and criminal history were made known during the trial. On
direct examination, Stone conceded that his drug use at the
time of the shooting was “pretty bad” and “pretty much
controlled [his] life.” He also admitted to consuming two
Tilts—an alcoholic energy drink—in the hours leading up to
the shooting. Trial counsel emphasized Stone’s drug use,
likely intoxication, and criminal conduct during his closing
statement. In light of these facts, it was reasonable for the
California court to conclude that trial counsel’s strategic
determination to forego the use of an addiction expert was
not objectively unreasonable.
Furthermore, Petitioner has not demonstrated that he
suffered prejudice from trial counsel’s choice to not present
LOPEZ V. ALLEN 17
testimony on Stone’s drug use. As the Supreme Court of
California has recognized, “[t]he effect of drugs, while
certainly a proper subject of expert testimony, has become a
subject of common knowledge among laypersons.” People
v. Yeoman, 72 P.3d 1166, 1218 (Cal. 2003). Even the expert
presented by Petitioner in support of his habeas petition
characterized the association between alcohol and violent
crime as “well known” in his declaration. The common
knowledge that drug and alcohol use can impair decision
making or lead to violent acts would have been known to the
jurors, regardless of whether such facts were reinforced by
an expert’s opinion or specific scientific data. It was
reasonable for the state habeas court to conclude that trial
counsel’s conduct was not constitutionally deficient and that
any error that might have occurred did not create sufficient
prejudice to call into question the outcome of the case.
C. Witness Impeachment
Petitioner contends that trial counsel’s failure to use
Stone’s prior statements to impeach Stone and Sergeant
Clements constituted ineffective assistance of counsel.
Certain details provided by Stone during his three pre-trial
interviews and in his testimony at trial were inconsistent,
including whether Petitioner possessed a weapon during the
shooting and passed through the gap in the fence. Petitioner
argues that trial counsel’s decision to not address these
inconsistencies weakened his ability to discredit Stone’s
unfavorable testimony and prejudiced the defense.
Trial counsel’s strategies, including the treatment of
witnesses, are entitled to deference on review. Brown v.
Uttecht, 530 F.3d 1031, 1036 (9th Cir. 2008). And because
we view the state court’s resolution of that question only
through the lens of AEDPA, our review is “doubly
deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123
18 LOPEZ V. ALLEN
(2009). The record suggests that trial counsel considered
Stone to be a mixed witness, offering testimony that was
both favorable and unfavorable to Petitioner. During his
cross-examination of Stone, trial counsel elicited from Stone
a statement that he did not believe that Petitioner fired a
firearm and that he was “very certain” that Petitioner “was
not shooting” during the incident. Trial counsel also
referenced the changing details of Stone’s account, noting
that it was only after receiving a plea deal that Stone claimed
that Petitioner had a gun during the shooting. These
inconsistencies were raised again during trial counsel’s
closing statement. Trial counsel also stressed that Stone
consistently stated that Braden was the only person he
observed shooting into Ross Sparks’ yard. Considering
these facts, a reasonable jurist could conclude that trial
counsel’s decision to not impeach Stone and Sergeant
Clements with Stone’s prior inconsistent statements was not
objectively unreasonable.
The decision to not impeach Stone and Sergeant
Clements with Stone’s prior inconsistent statements was also
not sufficiently prejudicial. As previously noted, the jury
was well aware of Stone’s drug addiction, criminal history,
and motivation to lie, which were stressed by trial counsel
during closing statements. The jury was also aware that
Stone’s account of the events surrounding the shooting had
changed. After Sergeant Clements testified that Stone had
stated in an interview that he had seen Petitioner “coming
back through an opening in the fence,” Stone himself
effectively impeached that prior statement by testifying that
it had been based on the testimony of others at the
preliminary hearing. Because the jury was in a position to
weigh the testimony of Stone, the state habeas court could
reasonably conclude that there is not a reasonable probability
that the outcome of the proceedings would have been
LOPEZ V. ALLEN 19
different if trial counsel had more forcefully attempted to
impeach Stone or Sergeant Clements.
D. Heights of Suspects
Petitioner argues that trial counsel rendered ineffective
assistance by not introducing evidence regarding the
respective heights of Braden, Stone, and himself. Gamble
described the individual shooting over the fence as about six
feet tall and the individual shooting through the gap in the
fence as slightly shorter than six feet tall. Petitioner
contends that Braden is over six feet tall and that Petitioner
is five feet, six inches tall. Trial counsel established that
Stone is six feet tall.
Even if trial counsel’s failure to address the respective
heights of Braden, Stone, and Petitioner during trial fell
below professional standards, it was not sufficiently
prejudicial. The jury was provided with Petitioner’s booking
photo, which reflected his height. The jury was also able to
directly observe the three men because Braden and Petitioner
were tried jointly and Stone testified at the trial. The
reliability of Gamble’s estimation of the shooters’ heights is
questionable because Gamble conceded that he “wasn’t
paying that close attention” and that it was difficult to make
out details of the shooter because of the darkness. Sparks
also testified that it was difficult to see the shooters and
opined that they appeared to be kneeling. Additionally,
substantial other evidence was available for the jury to
consider in determining the identities of the shooters.
Because Petitioner did not suffer sufficient prejudice, a
reasonable jurist could conclude that the outcome of the trial
would not have been different if trial counsel had expressly
raised the respective heights of Braden, Stone, and
Petitioner.
20 LOPEZ V. ALLEN
E. Accomplice Testimony Jury Instruction
Under California law, “[a] conviction [cannot] be had
upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect
the defendant with the commission of the offense . . . .” Cal.
Penal Code § 1111. Petitioner contends that trial counsel
should have obtained a pre-trial ruling on Stone’s
accomplice status, raised the need for corroboration during
his opening and closing statements, requested a modification
of pattern jury instruction 301, 4 and requested the use of
pattern jury instruction 335. 5
4
“[Unless I instruct you otherwise,] (T/the) testimony of only one
witness can prove any fact. Before you conclude that the testimony of
one witness proves a fact, you should carefully review all the evidence.”
Single Witness Testimony, Cal. Crim. Jury Inst. 301.
5
If the crime[s] of
(was/were) committed, then (was/were) [an] accomplice[s] to
(that/those) crime[s].
You may not convict the defendant of based on the (statement/ [or] testimony) of
an accomplice alone. You may use (a statement/ [or]
testimony) of an accomplice that tends to incriminate
the defendant to convict the defendant only if:
1. The accomplice’s (statement/ [or] testimony) is
supported by other evidence that you believe;
LOPEZ V. ALLEN 21
The lack of a jury instruction on corroboration of
accomplice testimony was considered on direct appeal. 6 The
2. That supporting evidence is independent of the
accomplice's (statement/ [or] testimony); AND
3. That supporting evidence tends to connect the
defendant to the commission of the crime[s].
Supporting evidence, however, may be slight. It does
not need to be enough, by itself, to prove that the
defendant is guilty of the charged crime, and it does
not need to support every fact (mentioned by the
accomplice in the statement/ [or] about which the
witness testified). On the other hand, it is not enough
if the supporting evidence merely shows that a crime
was committed or the circumstances of its
commission. The supporting evidence must tend to
connect the defendant to the commission of the crime.
[The evidence needed to support the (statement/ [or]
testimony) of one accomplice cannot be provided by
the (statement/ [or] testimony) of another accomplice.]
Any (statement/ [or] testimony) of an accomplice that
tends to incriminate the defendant should be viewed
with caution. You may not, however, arbitrarily
disregard it. You should give that (statement/ [or]
testimony) the weight you think it deserves after
examining it with care and caution and in the light of
all the other evidence.
Accomplice Testimony: No Dispute Whether Witness is Accomplice,
Cal. Crim. Jury Inst. 335.
6
It is unclear, however, from the opinion of the California Court of
Appeal if Petitioner presented the question in the context of ineffective
assistance of counsel. The appellate court’s analysis addressed whether
the trial court should have instructed the jury sua sponte. It is only in a
22 LOPEZ V. ALLEN
California Court of Appeal found that any error in not
providing an instruction to the jury was ultimately harmless
because there was ample corroborating evidence connecting
Petitioner to the crime. Petitioner now argues that the
California Court of Appeal was wrong because no evidence
other than Stone’s testimony supported Stone’s claim that
Petitioner had a gun at the scene of the shooting and was seen
returning through the gap in the fence after the shooting.
“The corroborative evidence required by section 1111
‘need not corroborate every fact to which the accomplice
testified or establish the corpus delicti, but is sufficient if it
tends to connect the defendant with the crime in such a way
as to satisfy the jury that the accomplice is telling the truth.’”
Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000)
(quoting People v. Fauber, 831 P.2d 249, 273 (Cal. 1992)).
It “may be slight, entirely circumstantial, and entitled to little
consideration when standing alone.” People v. Valdez,
281 P.3d 924, 974 (Cal. 2012). The jury was presented with
evidence that Petitioner spent the day preceding the shooting
with Braden, accompanied Braden to retrieve the shotgun,
was present when Braden modified the shotgun, had a heated
exchange with Ross Sparks in which Petitioner threatened
Ross Sparks’ family, had access to a shotgun, and
accompanied Braden to the scene of the shooting. A
reasonable jurist could conclude that any error by counsel in
failing to request jury instructions concerning accomplice
testimony was harmless and did not create sufficient
prejudice to meet the Strickland standard.
footnote that the Court of Appeal addressed whether trial counsel’s
performance was deficient.
LOPEZ V. ALLEN 23
F. Aggregate of Trial Counsel’s Deficiencies
Petitioner asserts that the cumulative impact of trial
counsel’s individual deficiencies was sufficiently prejudicial
to warrant habeas relief. We have previously recognized that
“the combined effect of multiple trial court errors violates
due process where it renders the resulting criminal trial
fundamentally unfair,” Parle v. Runnels, 505 F.3d 922, 927
(9th Cir. 2007) (citation omitted), and that the elements of
Strickland can be satisfied through an accumulation of
multiple instances of deficient performance, see Fairbank v.
Ayers, 650 F.3d 1243, 1257 (9th Cir. 2011).
As discussed above, the state courts had reasonable bases
for concluding that no error supported Petitioner’s individual
claims of ineffective assistance of counsel. The only
instance in which an error did occur—the failure to provide
a proper jury instruction—was reasonably deemed to be
harmless. Because Petitioner has failed to establish multiple
errors of constitutional magnitude, there can be no
accumulation of prejudice amounting to a denial of due
process or meeting the Strickland standard. United States v.
Solorio, 669 F.3d 943, 956 (9th Cir. 2012) (“There can be no
cumulative error when a defendant fails to identify more
than one error.” (citation omitted)); Hayes v. Ayers, 632 F.3d
500, 524 (9th Cir. 2011) (“Because we conclude that no error
of constitutional magnitude occurred, no cumulative
prejudice is possible.” (citation omitted)).
CONCLUSION
It is without question that trial counsel did not provide
ideal representation, but flawless representation is not
demanded by the Sixth Amendment. Harrington, 562 U.S.
at 110. It is possible that the state courts might have reached
different conclusions based on the evidence presented, but
24 LOPEZ V. ALLEN
our review is limited to the question of whether any
reasonable argument exists to justify the state court’s
conclusion that trial counsel’s performance did not violate
Strickland. Because such arguments do exist for the claims
raised by Petitioner, we affirm the denial of Petitioner’s
habeas petition.
AFFIRMED.
GRABER, Circuit Judge, dissenting:
I respectfully dissent. In my view, Petitioner’s trial
counsel provided ineffective assistance by failing to consult
with and failing to introduce evidence from an expert in
firearms acoustics. Petitioner was prejudiced by counsel’s
failure. Accordingly, the state court’s denial of Petitioner’s
claim was an unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984).
Eyewitnesses’ testimony placed two shooters at the
fence. It is undisputed that Braden was one of the shooters.
Who was the second shooter? Petitioner and Stone were
both arrested in connection with the shooting.
The evidence at trial suggesting that Petitioner was the
second shooter was largely circumstantial. For example, on
June 18, Petitioner had participated in Braden’s angry phone
exchange with Sparks and had sent threatening text
messages to Sparks. Petitioner was present both when
Braden retrieved a shotgun and when Braden sawed the
stock off it. Finally, Petitioner was at the scene of the
shooting with Braden and Stone. But only one individual,
Stone, put Petitioner at the scene with a firearm.
Specifically, Stone testified that Petitioner had a shotgun that
LOPEZ V. ALLEN 25
was similar to the one that Braden used, although he testified
that he never saw Petitioner fire the shotgun.
But there also was strong circumstantial evidence that
Stone was the second shooter. Before he picked up Braden
and Petitioner, Stone spent several hours with his girlfriend.
She testified that before picking them up, Stone had used
methamphetamines and had consumed four caffeinated
alcoholic beverages. Before going to the scene of the
shooting, Stone retrieved his .22-caliber rifle. After the
shooting, Stone fled and was on the run for two weeks with
his girlfriend before he was arrested. Although police
interviewed Stone three times before trial, he did not
mention that Petitioner allegedly had a shotgun with him
until the third interview, after which Stone entered into a
plea agreement reducing his potential sentence from life in
prison to roughly ten years of incarceration, in exchange for
his agreement to testify against Braden and Petitioner.
The fact that Stone had a .22-caliber rifle at the scene,
while Petitioner allegedly had a shotgun like Braden’s, is
crucial. One witness testified that the weapons used had two
distinct sounds. The weapon in the gap of the fence
produced a loud “boom,” while the weapon fired from the
top of the fence sounded like “a pap, pap . . . like a
firecracker . . . .” Another witness provided similar
descriptions. Sparks also testified that the firearms sounded
different, one with a “big boom sound” and the other with a
“lower sounding shot.” Sparks’ brother provided similar
testimony.
Although the majority opinion merely assumes that trial
counsel’s performance was unreasonable, Maj. Op. at 13, the
record makes clear that his performance was in fact
deficient. Stone—the only witness who put Petitioner at the
scene of the shooting with a firearm—testified that Petitioner
26 LOPEZ V. ALLEN
had a shotgun that was similar to Braden’s. But Stone took
to the scene of the shooting a firearm that differed from both
Braden’s shotgun and Petitioner’s alleged shotgun: a .22-
caliber rifle. Given how little solid evidence was available
to differentiate between the theory that Stone was the second
shooter and the theory that Petitioner was the second shooter,
no fairminded jurist could reasonably conclude that
counsel’s failure to pursue the significance of the different
sounds of the gunfire was within the range of competent
performance.
The majority opinion contends that calling an expert on
firearms acoustics would have undermined defense
counsel’s choice to attack the eyewitnesses’ credibility. But
trial counsel did rely on those witnesses’ testimony to argue
(albeit briefly) that the second shooter used a rifle like
Stone’s. An expert in firearms acoustics would have
provided an objective explanation for Stone’s being the
second shooter, an explanation that was supported by the
testimony of four witnesses. By contrast, Stone’s testimony
that Petitioner had a shotgun was uncorroborated, as well as
intensely self-serving. Counsel chose to rely only on
supposition to argue that the second shooter had a rifle. That
choice was objectively unreasonable.
Strickland’s prejudice prong also is satisfied. The
evidence corroborating Stone’s account was circumstantial
only, and the remaining evidence against Petitioner was
weak. Thus, Stone’s credibility was indispensable to the
prosecution’s case against Petitioner. The California Court
of Appeal recognized that expert testimony might have
tipped the scales:
[A]lthough the weight of the evidence
suggests the firearms sounded different, the
jury was offered an explanation that was
LOPEZ V. ALLEN 27
consistent with both weapons being
shotguns. No other evidence, such as expert
testimony, contradicted that explanation.
People v. Lopez, No. A136253, 2016 WL 634651, at *28
(Cal. Ct. App. Feb. 17, 2016) (unpublished) (emphasis
added). One justice on the California Court of Appeal would
have granted the petition on this issue. And, indeed, the
expert presented in this proceeding would have opined that
the witnesses’ descriptions of the different sounds made by
the two weapons fired are consistent with the firing of a .22-
caliber rifle and a semi-automatic shotgun and are
inconsistent with the firing of two shotguns. The majority
opinion makes much of the fact that Petitioner’s proffered
testimony of Petitioner’s expert of firearms acoustics
conflicts with the opinions of some eyewitnesses about the
nature of the firearms used in the shooting. Maj. Op. at 13–
14. But the conflict between the expert opinion and lay
opinions is precisely why the expert’s testimony was
indispensable to Petitioner’s defense. Such expert testimony
would have created a reasonable doubt about Petitioner’s
guilt.
On this record, no fairminded jurist could reasonably
conclude that there was no prejudice. See Hardy v.
Chappell, 849 F.3d 803, 826–27 (9th Cir. 2016) (concluding
that the California Supreme Court had applied Strickland
unreasonably in denying habeas relief when counsel had
failed to present evidence that the State’s key witness was
the second killer). Accordingly, the California courts’
conclusion to the contrary unreasonably applied Strickland. 1
1
Because the California courts unreasonably applied Strickland
with respect to Petitioner’s claim regarding firearms acoustics, I would
28 LOPEZ V. ALLEN
I would, therefore, reverse and remand.
reverse on that issue alone and would not reach Petitioner’s remaining
claims.